Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions: (a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 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 their opinion, dated the Closing Date and addressed to the Representatives, to the effect that: (i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification; (ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance; (iii) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding; (iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings; (v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion); (vi) this Agreement has been duly authorized, executed and delivered by the Company; (vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended; (viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained; (ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties; (x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; (xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained; (xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company; (xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies; (xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ; (xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and (xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date. (c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto). (e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that: (i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder; (ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities; (iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and (iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliabl
Appears in 2 contracts
Sources: Underwriting Agreement (Atx Group Inc), Underwriting Agreement (Atx 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 and the Selling Stockholder 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 Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 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 their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the CompanyCompany and NPTest, ATX Technologies and ATX Europe GmbH Inc. (the “ATX EuropeSubsidiary”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification; except where such failure to so qualify or to be in good standing would not reasonably be likely to have, individually or in the aggregate, a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business; notwithstanding the foregoing, the Company is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction listed on an exhibit to such opinion;
(ii) NPTest LLC is validly existing as a limited liability company in good standing under the laws of the jurisdiction in which it is organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus;
(iii) all the outstanding shares of capital stock of ATX Technologies the Subsidiary and ATX Europe NPTest LLC have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies the Subsidiary and ATX Europe NPTest LLC are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iiiiv) the Company’s authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; and the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except Securities under the Company’s certificate of incorporation or by-laws or the contracts or agreements filed as set forth exhibits to the Registration Statement or as otherwise described in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(ivv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case Description of Capital Stock” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(vvi) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, amended the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vivii) this Agreement has been duly authorized, executed and delivered by the Company;
(viiviii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viiiix) no consent, approval, authorization, filing with or order of or qualification with, any court governmental body or governmental agency under United States federal or body New York state law that is normally applicable to general business corporations in relation to transactions of the type contemplated by this Agreement is required in connection with for the transactions contemplated hereinperformance by the Company of its obligations under this Agreement, except (x) such as have been obtained and made under the Act and Act, (y) as such as may be required under state securities laws or (z) as such relate to the blue sky laws of any jurisdiction in connection with the purchase and distribution review of the Securities transactions by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtainedNational Association of Securities Dealers, Inc;
(ixx) neither the issue execution and delivery by the Company of, and the issuance and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries Securities pursuant to, (i) this Agreement will not contravene any provision of applicable United States federal or New York state law that is generally applicable to general business corporations in relation to transactions of the charter type contemplated by this Agreement is required for the performance by the Company of its obligations under this Agreement, or the certificate of incorporation or by-laws of the Company or its SubsidiariesCompany, (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 or the Subsidiaries is a party contracts or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable agreements filed as exhibits to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;Registration Statement; and
(xxi) except as set forth in or contemplated provided for in the Prospectus (exclusive of any supplement thereto)Stockholder’s Agreement, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas New York, State of California and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from BVI counsel for NPTest International Ltd (BVI), such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the due incorporation and valid existence of such entity and the issuance and ownership of the capital stock of such entity and such other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Representatives shall have received from Singapore counsel for NPTest Pte Ltd (Singapore), such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the due incorporation and valid existence of such entity and the issuance and ownership of the capital stock of such entity and such other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder 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 Representatives shall have received from UK counsel for NPTest UK Ltd (UK), such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the due incorporation and valid existence of such entity and the issuance and ownership of the capital stock of such entity and such other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ L.L.P.& ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(dg) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board Chief Executive Officer or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiariessubsidiaries, 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 Prospectus (exclusive of any supplement thereto).
(eh) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ to have furnished to the Representatives their opinion, opinion dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have has been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver sale of the Option Securities in the manner provided in this Agreement and is within the Custody Agreement limited liability company powers of the Securities being sold by such Selling Stockholder hereunderand has been duly authorized by all necessary limited liability company action;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (“UCC”)), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor thereof as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary by having The Depository Trust Company or such other securities intermediary indicate by book entry that the Securities have been credited to such account or accounts will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization authorization, filing with or order of any court or governmental agency or body is required for the sale of the Option Securities offered by the Selling Stockholder hereunder and the compliance by the Selling Stockholder with the provisions of this Agreement, except (x) consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such Act, (y) as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated by this Agreement and such other approvals in the Prospectus, or (specified in such opinionz) as have been obtainedrelate to the review of the transaction by the National Association of Securities Dealers, Inc.; and
(ivi) neither the sale of the Option Securities being sold offered by the Selling Stockholder hereunder nor the consummation of any other of the transactions herein contemplated compliance by the Selling Stockholder or with the fulfillment provisions of the terms hereof by the Selling Stockholder this Agreement will conflict with, result in a breach or violation of, or constitute a default under any law or (x) the charter or By-laws limited liability company agreement of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or boundStockholder, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliabl
Appears in 2 contracts
Sources: Underwriting Agreement (Nptest Holding Corp), Underwriting Agreement (Nptest Holding Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Underwriters’ Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Guarantor 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 and the Selling Stockholder Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Guarantor of its their obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree Representative agrees in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM p.m. New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM p.m. New York City time on such date or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM p.m. New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be 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(a) hereof, any other material required to be filed by the Company and the Guarantor pursuant to Rule 433(d) shall have been filed in the manner and within the time period required by Rule 433 and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company and the Guarantor shall have requested and caused ▇furnished to the Representative the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇, III, Esq., Senior Counsel and Corporate Secretary of the Guarantor, dated the Closing Date (which opinion may be relied upon by Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the CompanyUnderwriters, as to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representativesmatters of Pennsylvania law), to the effect that:
(i) each Each of the Company, ATX Technologies Company and ATX Europe GmbH (“ATX Europe”) has been Guarantor is a corporation duly incorporated and is presently subsisting as a corporation under the laws of the Commonwealth of Pennsylvania with all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Pricing Disclosure Package and the Final Prospectus, except for such power and authority the absence of which would not have a material adverse effect on the Guarantor or the Company, as the case may be, or materially and adversely affect its ability to perform its obligations under this Agreement, the Indenture and the Securities, and the Guarantor is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended;
(ii) PNC Bank, National Association (“PNC Bank, N.A.”) is validly organized and existing as a corporation national banking association in good standing under the laws of the jurisdiction in which it is chartered or organizedUnited States, with full corporate all requisite power and authority to own or leaseown, as the case may be, lease and to operate its properties and conduct its business as described in the Pricing Disclosure Package and the Final Prospectus, except for such power and is duly qualified to do business as authority the absence of which would not have a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualificationmaterial adverse effect on PNC Bank, N.A.;
(iiiii) all All the outstanding shares of capital stock of ATX Technologies and ATX Europe PNC Bank, N.A. have been duly and validly authorized and issued and (except as provided in 12 U.S.C. § 55) are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, and all outstanding shares of capital stock of ATX Technologies and ATX Europe PNC Bank, N.A. are owned by the Company either directly or Guarantor through PNC Bancorp, Inc., a wholly owned subsidiaries subsidiary of the Guarantor, free and clear of any perfected security interest and, to the knowledge of such counsel, counsel after due inquiry, any other security interestinterests, claimclaims, lien liens or encumbranceencumbrances;
(iiiiv) the CompanyThe Guarantor’s authorized capitalization equity capitalization, if set forth in the Pricing Disclosure Package and the Final Prospectus, is as set forth in the Final Prospectus; the capital stock of the Company conforms Securities conform in all material respects to the description thereof contained in the Pricing Disclosure Package and the Final Prospectus; and, if the outstanding shares Securities are to be listed on any stock exchange, authorization therefor has been given, subject to official notice of Common Stock issuance and evidence of satisfactory distribution, or the Company and the Guarantor have filed a preliminary listing application with respect to the Securities with such stock exchange and nothing has caused such counsel to believe that the Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution and the satisfaction of other requirements which counsel reasonably believes will be satisfied in due course;
(v) The Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, receivership, readjustment of debt, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally or general equitable principles (whether considered in a proceeding in equity or at law); and the Securities have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; in the Securities being sold hereunder case of the Underwriters’ Securities, or by the Company are duly listedpurchasers thereof pursuant to Delayed Delivery Contracts, and admitted and authorized for tradingin the case of any Contract Securities, subject to official notice of issuance and evidence of satisfactory distributionwill constitute legal, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock binding obligations of the Company are not and the Guarantor entitled to preemptive or other rights to subscribe for the Securities; andbenefits of the Indenture, and enforceable against the Company and the Guarantor in accordance with their respective terms, except as set forth such enforceability may be limited by applicable bankruptcy, insolvency, receivership, readjustment of debt, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally or general equitable principles (whether considered in the Prospectus, no options, warrants a proceeding in equity or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstandingat law);
(ivvi) to To the knowledge of such counsel, there is are no actions, suits, proceedings or investigations pending or threatened actionagainst the Guarantor, suit the Company or proceeding by or before PNC Bank, N.A. in any court or before or by an arbitrator or governmental agencyauthority, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is are not adequately disclosed in the Pricing Disclosure Package and the Final Prospectus, and to the best of my knowledge, there is no franchise, contract or other document of a character required to be described in the Registration Statement Statement, the Pricing Disclosure Package or Final Prospectus, or to be filed as an exhibit theretoexhibit, which is not described or filed as required; and the statements included or incorporated in the Pricing Disclosure Package and the Final Prospectus under describing any legal proceedings or material contracts or agreements relating to the headings “Description Guarantor or any of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, its subsidiaries fairly summarize such matters in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedingsall material respects;
(vvii) the The Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); any required filing of any Issuer Free Writing Prospectus pursuant to Rule 433(d) has been made in the manner and within the time period required by Rule 433; to the best 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 threatened, and the Registration Statement Statement, the Pricing Disclosure Package and the Final Prospectus (other than the financial statements and other financial and statistical information contained or incorporated therein, and that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the that Act and the Exchange Act and the respective rules and regulations thereunder; and nothing has come to the attention of such counsel that has no reason caused such counsel to believe that on at the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any an untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; that the Pricing Disclosure Package as of the Applicable Time contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or that the Final Prospectus as of its date and on as of the Closing Date included or includes any an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading except that such counsel does not express any opinion or belief as to (in each case, other than a) the financial statements or schedules or other data of a financial nature, (b) that part of the Registration Statement that constitutes the Statement of Eligibility and other financial Qualification (Form T-1) of the Trustee under the Trust Indenture Act, and statistical information contained therein(c) regulatory actions of the applicable regulatory authorities that are not otherwise disclosed by such regulatory authorities. In connection with the foregoing, as to which the Underwriters acknowledge and understand that the character of determinations involved in the process of preparing the Registration Statement and the Final Prospectus (including any documents incorporated by reference) are such that such counsel need express no opinion);not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Final Prospectus (including any documents incorporated by reference) except as expressly set forth herein.
(viviii) this This Agreement has and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the CompanyCompany and the Guarantor;
(viiix) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no No consent, approval, authorization, filing with authorization or order of any court or governmental agency or body is required in connection with for the consummation of the transactions contemplated hereinherein or in any Delayed Delivery Contracts, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ixx) neither Neither the issue issuance and sale of the Securities, Securities nor the consummation of any other of the transactions contemplated herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach hereof or violation of, or imposition of any lien, charge or encumbrance upon Delayed Delivery Contracts will: (A) violate any property or assets provision of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, the Guarantor or (iiB) the terms constitute a violation or breach of or default under any material provision of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan material indenture or other material agreement or other agreement, obligation, condition, covenant or instrument known to such counsel and to which the Company Company, the Guarantor or the Subsidiaries PNC Bank, N.A. is a party or bound or to which its or their property is subjectparty, or (iiiC) violate any statute, law, rule, regulation, judgment, order or decree applicable to the Company Company, the Guarantor or the Subsidiaries PNC Bank, N.A. of any court, court or federal or state regulatory body, administrative agency, or governmental body, arbitrator or other authority agency having jurisdiction over the Company Company, the Guarantor or PNC Bank, N.A.; except in (A), (B), or (C) above, with respect to violations, breaches or defaults that would not have a material adverse effect on the Subsidiaries Company, the Guarantor and its consolidated subsidiaries taken as a whole or any of its or their propertiesPNC Bank, N.A.;
(xxi) except The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as set forth in or contemplated described in the Prospectus Pricing Disclosure Package, will not be an “investment company” or an entity “controlled” by an “investment company”, as such terms are defined in the Investment Company Act.
(exclusive of any supplement thereto), no xii) The Securities and the Indenture conform in all material respects to the descriptions thereof in the Pricing Disclosure Package and the Final Prospectus; and
(xiii) No holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel will opine only as to matters involving the application of the laws of the Commonwealth of Pennsylvania or the United States and may rely (A) as to matters involving the application of laws of any jurisdiction other than the State Commonwealth of Texas and the State of Delaware Pennsylvania or the Federal laws of the United States, to the extent they deem deemed proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe believed to be reliable and who are reasonably satisfactory to counsel for the Underwriters Underwriters, except that it will not be required that such counsel obtain an opinion of New York counsel as to matters of New York law in order to render such opinion or that such counsel express an opinion as to matters arising under the laws of any jurisdiction other than the laws of the Commonwealth of Pennsylvania and matters of federal law arising under the laws of the United States of America, and (B) as to matters of fact, to the extent they he or she may deem proper, on certificates certificates, or representations of responsible officers of the Company or the Guarantor and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives Representative shall have received from Cravath, Swaine & ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.LLP, counsel for the Underwriters, such opinion or opinionsand statement, dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, any Delayed Delivery Contracts, the Registration Statement, the Final Prospectus (together with any supplement thereto) ), the Pricing Disclosure Package and other related matters as the Representatives Representative may reasonably require, and the Company and the 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.
(d) The Company Guarantor shall have furnished to the Representatives Representative a certificate of the CompanyGuarantor, signed by the Chairman of the Board, the President, a Vice Chairman of the Board or the any Executive or Senior Vice President and the principal financial or accounting officer of the CompanyGuarantor, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, Pricing Disclosure Package, the Final Prospectus, any supplements supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company and the 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 has and the Guarantor have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the CompanyGuarantor’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on change in the condition (financial or otherwiseother), prospects, earnings, business or properties of the Company Guarantor and its Subsidiaries, subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Pricing Disclosure Package (exclusive of any supplement thereto) and the Final Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder At the Closing Date, Deloitte and Touche LLP shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinionRepresentative a letter or letters (which may refer to letters previously delivered to the Representative), dated as of the Closing Date Date, in form and addressed substance satisfactory to the RepresentativesRepresentative, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming confirming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (they are independent accountants within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliabl
Appears in 2 contracts
Sources: Underwriting Agreement (PNC Financial Services Group Inc), Underwriting Agreement (PNC Financial Services 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 and the Selling Stockholder Securityholder 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 Stockholder Securityholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Securityholder of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPDechert, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the CompanyCompany and Constar Inc., ATX Technologies and ATX Europe GmbH (“ATX Europe”) a corporation organized under the laws of the Commonwealth of Pennsylvania, has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedincorporated, with full corporate power and corporate authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and and, in the case of the Company, is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualificationthe Commonwealth of Pennsylvania;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all the outstanding shares of capital stock of ATX Technologies Constar, Inc. and ATX Europe are Constar Foreign Holdings, Inc. owned by the Company are owned either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance; and to the knowledge of such counsel, based solely upon a report as to UCC financing statements on file against the Company, Constar Foreign Holdings, Inc., Crown Cork & Seal Company, Inc., Crown UK Holdings Ltd. and Crown Cork Netherlands Holding BV with the Secretary of State of the State of New York, the Secretary of State of the Commonwealth of Pennsylvania and the Secretary of State of the State of Delaware, there is no security interest, claim, lien or encumbrance with respect to the outstanding shares of capital stock of Constar International Holland (Plastics) BV and Constar International UK Ltd.;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock Securities being sold hereunder by the Selling Securityholder have been duly and validly authorized and issued and issued, are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by Selling Securityholder on the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; date of the Securities being sold hereunder by the Company opinion are duly listed, and admitted and authorized for trading, subject quotation on the Nasdaq; the form of certificate used to official notice evidence the Common Stock complies with the requirements of issuance the General Corporation Law of the State of Delaware and evidence the requirements of satisfactory distribution, on the Nasdaq National Market; except as set forth in the certificates for the Securities are in valid and sufficient form; Prospectus, the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, to the knowledge of such counsel based on a review of the corporate records of the Company, the charter and by-laws of the Company and an officers' certificate delivered to such counsel by officials of the Company, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description heading "Material United States Tax Consequences to Non-U.S. Holders of Capital Common Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case " insofar as such statements summarize constitute a summary of the legal matters, agreements, matters or documents or proceedings discussed referred to therein, are accurate and fair summaries of fairly present the information called for with respect to such legal matters, agreements, documents matters or proceedingsdocuments;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion)threatened;
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities (including the Company's concurrent offering of its 11% Senior Subordinated Notes due 2012 and the Company's concurrent receipt of term loans as described in the Prospectus) and the application of the proceeds thereof as described in the Prospectus, will not be, be an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any Pennsylvania, New York, Delaware or U.S. Federal court or governmental agency or body is required in connection with for the consummation by the Company of the transactions contemplated herein, except (1) such as have been obtained under the Act and Act, (2) such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and Prospectus, as to which such counsel need express no opinion, (3) such other approvals (specified in such opinion) as have been obtainedobtained and (4) where the failure to obtain such consent, approval, authorization, filing or order would not have a material adverse effect on the sale of the Securities or the consummation of any of the other transactions contemplated herein;
(ix) neither the issue and sale of the Securities, nor Securities by the Selling Securityholder on the date of the opinion or the consummation of any other of the transactions contemplated herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will (1) conflict with, with or result in a breach or violation of the charter or by-laws of the Company or Constar Inc., (2) result in a material breach or violation of, or the imposition of any material lien, charge or encumbrance upon any property or assets of the Company or the its Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (ii) to the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument that is material to the Company and its subsidiaries, taken as a whole, and that is known to such counsel after due inquiry to which the Company or the Subsidiaries any Subsidiary is a party or bound or to which its or their property is subject, or (iii3) conflict with or violate in any material respect any Delaware corporate, Pennsylvania, New York or U.S. Federal statute, law, rulerule or regulation applicable to the Company or the Subsidiaries, regulation, or any judgment, order or decree known to such counsel after due inquiry to be applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;properties (other than U.S. Federal or state securities or blue sky laws, other anti-fraud laws and fraudulent transfer laws and bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights, as to which such counsel need not express any opinion); and
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) . In rendering such opinion, such counsel may state that their opinion is limited to matters governed by the Merger complied with applicable law and did not require Federal laws of the consent or approval United States of any third party that was not obtained;
(xii) in connection with the MergerAmerica, the Company properly (A) exchanged all law of the outstanding shares Commonwealth of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the CompanyPennsylvania, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws law of the State of Texas New York and the General Corporation Law of the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the ActDelaware. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State Commonwealth of Texas and Pennsylvania, the State of Delaware Delaware, the State of New York or the Federal laws of the United StatesStates and as to matters involving the application of laws relating to intellectual property, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on written statements or certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date. Such counsel shall also have furnished to the Underwriters a written statement, addressed to the Underwriters and dated the Closing Date (or the applicable settlement date) to the effect that (i) the Registration Statement and the Prospectus (other than the financial statements (including pro forma financial statements and notes to financial statements or pro forma financial statements) and related schedules and other financial, accounting or statistical information included in or excluded from the Registration Statement or the Prospectus, as to which such counsel need express no belief) appear on their face to be appropriately responsive in all material respects to the requirements of the Act and the rules and regulations thereunder and (ii) such counsel participated in conferences with officers and representatives of the Company, PricewaterhouseCoopers LLP, the Underwriters, the Selling Securityholder and Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ in connection with the preparation of the Registration Statement, and based on the foregoing and without assuming responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement except as provided in clause 6(b)(iv) above or making any independent check or verification thereof (and relying as to factual matters upon the statements of officers and other representatives of the Company, the Selling Securityholder and others), no facts have come to the attention of such counsel which lead them to believe that (I) the Registration Statement, as of the Effective Date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading or (II) the Prospectus, as of its date and as of the Closing Date (and any applicable settlement date), contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that such counsel need not express a belief as to any financial statements (including pro forma financial statements and notes to financial statements or pro forma financial statements) and related schedules, and other financial, accounting or statistical information included in or excluded from the Registration Statement or the Prospectus.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder Securityholder shall have requested and caused Dechert, counsel for the Selling StockholderSecurityholder, to have furnished to the Representatives their opinion, opinion dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have has been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderSecurityholder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any Pennsylvania or U.S. Federal court or governmental agency or body is required for the consummation by the Selling Stockholder Securityholder of the transactions contemplated herein, except (1) such as may have been obtained under the Act and Act, (2) such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus, as to which such counsel need express no opinion, (3) such other approvals (specified in such opinion) as have been obtainedobtained and (4) where the failure to obtain such consent, approval, authorization, or order would not have a material adverse effect on the sale of the Securities or the consummation of any of the other transactions contemplated herein; and
(iviii) neither the sale of the Securities being sold hereunder by the Selling Stockholder Securityholder on the date of the opinion nor the consummation of any other of the transactions contemplated herein contemplated by the Selling Stockholder or Securityholder nor the fulfillment of the terms hereof by the Selling Stockholder Securityholder will (1) conflict with, with or result in a breach or violation of, or constitute a default under any law or of the charter or Byby-laws of the Selling Stockholder Securityholder, (2) result in a material breach or violation of, or the imposition of any material lien, charge or encumbrance upon any property or assets of the Selling Securityholder pursuant to the terms of any indenture material indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement agreement, obligation, condition, covenant or instrument known to such counsel and after due inquiry to which the Selling Stockholder or any of its subsidiaries Securityholder is a party or boundbound or to which its property is subject, or (3) conflict with or violate in any material respect any Pennsylvania, New York or U.S. Federal statute, law, rule or regulation applicable to the Selling Securityholder, or any judgment, order or decree known to such counsel after due inquiry to be applicable to the Selling Stockholder or any of its subsidiaries Securityholder of any court, regulatory body, administrative agency, governmental body body, or arbitrator or other authority having jurisdiction over the Selling Stockholder Securityholder or any of its subsidiariesproperties (other than U.S. Federal or state securities or blue sky laws, other anti-fraud laws and fraudulent transfer laws and bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights, as to which such counsel need not express any opinion). In rendering such opinion, such counsel may state that their opinion is limited to matters governed by the Federal law of the United States of America, the law of the Commonwealth of Pennsylvania and the law of the State of New York. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State Commonwealth of Texas and Pennsylvania, the State of Delaware New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablreliable and who are satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Selling Securityholder and public officials.
(d) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, special counsel for the Company and the Selling Securityholder, to have furnished to the Representativ
Appears in 2 contracts
Sources: Underwriting Agreement (Constar International Inc), Underwriting Agreement (Crown Cork & Seal Co Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder 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 Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 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▇, General Counsel for the Company, to have furnished to the Representatives her opinion, dated the Closing Date and addressed to the Representatives, substantially in the form set forth in Exhibit B.
(c) The Company shall have requested and caused Debevoise & ▇▇▇▇▇▇▇▇, outside counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described substantially in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise form set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;Exhibit C.
(iiid) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the The Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock shall have been duly requested and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇caused Drinker ▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by & ▇▇▇▇▇ LLP, outside New Jersey counsel for the Company, to have furnished to the Merging Entity Representatives their opinion, dated the Closing Date and ATX Technologies;addressed to the Representatives, substantially in the form set forth in Exhibit D.
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(ce) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇ L.L.P.▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(df) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman or Vice Chairman of the Board or the President and the principal financial or accounting officer or the treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus 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 in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement 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 or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiariessubsidiaries, 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 Final Prospectus (exclusive of any supplement thereto).
(eg) The Selling Stockholder Company shall have requested and caused , counsel for the Selling Stockholder, Ernst & Young LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives, to confirming that they are independent accountants within the effect meaning of the Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for the three-month period ended March 31, 2003, and as at March 31, 2003, in accordance with Statement on Auditing Standards No. 100, and stating in effect, except as provided in Schedule I hereto, that:
(i) this Agreement in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Custody Agreement Final Prospectus and Power reported on by them comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed the Act and delivered the Exchange Act and the related rules and regulations adopted by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderCommission;
(ii) assuming that each Underwriter acquires its interest in on the Securities it has purchased from the Selling Stockholder without notice basis of any adverse claim (within the meaning of Section 8-105 a reading of the UCC), each Underwriter that has purchased such Securities delivered on latest unaudited financial statements made available by the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts 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 such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter significance with respect to the comments set forth in such Securitiesletter; a reading of the minutes of the meetings of the stockholders, directors and the executive, finance and audit 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 March 31, 2003, nothing came to their attention which caused them to believe that:
(A) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus;
(B) with respect to the period subsequent to March 31, 2003, there were any increases, 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 decreases in the shareholders' equity of the Company as compared with the amounts shown on March 31, 2003 consolidated balance sheet included or incorporated by reference in the Registration Statement and the Final Prospectus, or for the period from April 1, 2003 to May 31, 2003 there were any decreases, as compared with the corresponding period in the preceding year, in total revenues or premiums earned 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 Representatives; or
(C) the information included or incorporated by reference in the Registration Statement and Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K;
(iii) no consentthey have performed certain other specified procedures as a result of which they determined that certain information of an accounting, approvalfinancial or statistical nature (which is limited to accounting, authorization financial or order statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Final Prospectus and in Exhibit 12 to the Registration Statement, including the information set forth under the captions "Summary Historical Financial Data" and "Capitalization" in the Final Prospectus, the information included or incorporated by reference in Items 5-8 and 10-13 inclusive of the Company's Annual Report on Form 10-K, incorporated by reference in the Registration Statement and the Final Prospectus, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated by reference in the Company's Quarterly Reports on Form 10-Q, incorporated by reference in the Registration Statement and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph 6(g) include any supplement thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any court amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or governmental agency decrease specified in the letter or body is required for letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the consummation by the Selling Stockholder condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions contemplated hereinin the ordinary course of business, except such as may have been obtained under set forth in or contemplated in the Act and such as may be required under the blue sky laws Final Prospectus (exclusive of any jurisdiction supplement thereto) the effect of which, in connection 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 purchase and distribution offering or delivery of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or Registration Statement (exclusive of any amendment thereof) and the fulfillment Final Prospectus (exclusive of any supplement thereto).
(i) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the terms hereof Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Selling Stockholder will conflict with, result Act) or any notice given of any intended or potential decrease in any such rating or of a breach or violation of, or constitute a default under possible change in any law or such rating that does not indicate the charter or By-laws direction of the Selling Stockholder possible change.
(k) The Company shall have used commercially reasonable best efforts to furnish, at the Execution Time, and the Company shall have furnished, on or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable prior to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United StatesClosing Date, to the extent they deem proper Representatives a letter substantially in the form of Exhibit A hereto from each executive officer and director of the Company addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled 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 opinion, upon cancellation shall be given to the opinion of other counsel of good standing whom they believe Company in writing or by telephone or facsimile confirmed in writing. The documents required to be reliabldelivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Chubb Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities Units and the Option SecuritiesAdditional Units, as the case may be, shall be subject to (i) the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Alliance Parties contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to (ii) the accuracy of the statements of the Company and the Selling Stockholder Alliance Parties made in any certificates pursuant to the provisions hereof, to (iii) the performance by the Company and the Selling Stockholder Alliance Entities of its their obligations hereunder and to (iv) the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives Underwriters agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM P.M. New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM P.M. New York City time on such date or (ii) 9:30 AM A.M. on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM P.M. New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Partnership shall have requested and caused Vinson & Elkins L.L.P., counsel for the Partnership, to have furnished ▇▇ ▇▇e U▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives iters their opinion, dated the Closing Date and addressed to the RepresentativesUnderwriters, to the effect that:
(i) each Each of the CompanyPartnership and the Intermediate Partnership has been duly formed and is validly existing and in good standing as a limited partnership under the Delaware LP Act with all necessary partnership power and authority to own or lease its properties and conduct its business, ATX Technologies in each case in all material respects as described in the Final Prospectus. Each of the Partnership and ATX Europe GmbH the Intermediate Partnership is duly registered or qualified as a foreign limited partnership for the transaction of business under the laws of the states set forth on Exhibit A to such counsel's opinion.
(“ATX Europe”ii) The Operating Company has been duly formed and is validly existing and in good standing as a limited liability company under the Delaware LLC Act with all necessary limited liability company power and authority to own or lease its properties and conduct its business, in each case in all material respects as described in the Final Prospectus. The Operating Company is duly registered or qualified as a foreign limited liability company for the transaction of business under the laws of the states set forth on Exhibit A to such counsel's opinion.
(iii) Each of Gibson County Coal, LLC, Hopkins County Coal, LLC, MC Mining, ▇▇▇, Mettiki Coal, LLC, ▇▇▇▇▇▇▇ Coal, LLC, Webster County Coal, LLC and White County Coal, LLC (collecti▇▇▇▇, ▇he "Material Subsidiaries") has been formed in accordance with Section 18-201 of the Delaware Limited Liability Company Act and is validly existing and in good standing under the Delaware LLC Act, with all necessary limited liability company power and authority to own or lease its properties and conduct its business, in each case in all material respects as described in the Final Prospectus. Each Material Subsidiary is duly registered or qualified as a foreign limited liability company for the transaction of business under the laws of the states set forth on Exhibit A to such counsel's opinion.
(iv) Alliance Service, Inc. has been duly incorporated and is validly existing as a corporation and in good standing under the laws of the jurisdiction in which it is chartered or organizedDGCL, with full all necessary corporate power and authority to own or lease, as the case may be, and to operate lease its properties and conduct its business business, in each case in all material respects as described in the Final Prospectus. Alliance Service, and Inc. is duly registered or qualified to do business as a foreign corporation and is in good standing for the transaction of business under the laws of each jurisdiction which requires the states set forth on Exhibit A to such qualification;counsel's opinion.
(iiv) Each General Partner has been duly formed and is validly existing and in good standing as a limited liability company under the Delaware LLC Act, with all necessary limited liability company power and authority to own or lease its properties, conduct its business and act as general partner of the Partnership and the Intermediate Partnership and, as to the Managing General Partner, to act as the managing member of the Operating Company, in each case in all material respects as described in the Final Prospectus. Each General Partner is duly registered or qualified as a foreign limited liability company for the transaction of business under the laws of the states set forth on Exhibit A to such counsel's opinion.
(vi) The Managing General Partner and the Special General Partner are the sole general partners of the Partnership, with .99% and .01% general partner interests, respectively, in the Partnership; such general partner interests have been duly authorized and validly issued in accordance with the Partnership Agreement; and each General Partner owns its general partner interests free and clear of all liens, encumbrances, security interests, charges or claims (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming such General Partner as debtor is on file in the office of the Secretary of State of the State of Delaware or (B) otherwise known to such counsel, without independent investigation, other than those created by or arising under the Delaware LP Act.
(vii) The Operating Company owns a 100% membership interest in each of the Material Subsidiaries and the Operating Company owns such membership interests free and clear of all liens, encumbrances, security interests, charges or claims (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Operating Company as debtor is on file in the office of the Secretary of State of the State of Delaware, or (B) otherwise known to such counsel, without independent investigation, other than those created by or arising under the Delaware LLC Act.
(viii) The Operating Company owns all of the outstanding capital stock of Alliance Service, Inc.; such shares of capital stock of ATX Technologies and ATX Europe have been duly authorized and validly authorized issued in accordance with the certificate of incorporation and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock bylaws of the Company conforms in all material respects Alliance Service, Inc., as amended to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued date, and are fully paid and nonassessable; and the Securities being sold hereunder Operating Company owns such shares of capital stock, free and clear of all liens, encumbrances, security interests, charges or claims (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Operating Company as debtor is on file in the office of the Secretary of State of the State of Delaware, or (B) otherwise known to such counsel, without independent investigation, other than those created by or arising under the Company DGCL.
(ix) All of the outstanding Common Units issued to the underwriters in the Partnership's initial public offering, the Subordinated Units and the Incentive Distribution Rights and the limited partner interests represented thereby have been duly authorized and validly authorizedissued in accordance with the Partnership Agreement, and are fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by matters described in Section 17-607 of the Delaware LP Act).
(x) The Units to be issued and sold to the Underwriters by the Partnership pursuant to this Agreement and the limited partner interests represented thereby have been duly authorized by the Partnership Agreement and, when issued and delivered to and paid for by the Underwriters pursuant to against payment therefor as provided in this Agreement, will be validly issued in accordance with the Partnership Agreement and fully paid (to the extent required under the Partnership Agreement) and nonassessable; the Securities being sold hereunder nonassessable (except as such nonassessability may be affected by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are matters described in valid and sufficient form; the holders of outstanding shares of capital stock Section 17-607 of the Company Delaware LP Act).
(xi) The Managing General Partner and the Special General Partner are not entitled to preemptive or other rights to subscribe for the Securities; andsole general partners of the Intermediate Partnership, except as set forth with 1.0001% and .01% general partner interests, respectively, in the ProspectusIntermediate Partnership; such general partner interests have been duly authorized and validly issued in accordance with the Intermediate Partnership Agreement; and each General Partner owns its general partner interest free and clear of all liens, no optionsencumbrances, warrants security interests, charges or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares claims (A) in respect of capital stock which a financing statement under the Uniform Commercial Code of or ownership interests the State of Delaware naming such General Partner as debtor is on file in the Company are outstanding;
office of the Secretary of State of the State of Delaware or (ivB) otherwise known to the knowledge of such counsel, there is no pending or threatened actionwithout independent investigation, suit or proceeding other than those created by or before any court or governmental agency, authority or body or any arbitrator involving arising under the Company or any Delaware LP Act.
(xii) The Partnership owns a 98.9899% limited partner interest in the Intermediate Partnership; such limited partner interest has been duly authorized and validly issued in accordance with the Intermediate Partnership Agreement and is fully paid (to the extent required under the Intermediate Partnership Agreement) and nonassessable (except as such nonassessability may be affected by matters described in Section 17-607 of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as requiredDelaware LP Act); and the statements included Partnership owns such limited partner interest free and clear of all liens, encumbrances, security interests, charges or claims (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Partnership as debtor is on file in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing office of the Prospectus, and any supplements thereto, pursuant Secretary of State of the State of Delaware or (B) otherwise known to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each casewithout independent investigation, other than those created by or arising under the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);Delaware LP Act.
(vixiii) this The Managing General Partner is the sole manager of the Operating Company with a .001% managing interest in the Operating Company; such managing interest has been duly authorized and validly issued in accordance with the Operating Company LLC Agreement; and the Managing General Partner owns such managing interest free and clear of all liens, encumbrances, security interests, charges or claims (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Managing General Partner as debtor is on file in the office of the Secretary of State of the State of Delaware or (B) otherwise known to such counsel, without independent investigation, other than those created by or arising under the Delaware LLC Act.
(xiv) The Intermediate Partnership owns a 99.999% non-managing interest in the Operating Company; such non-managing interest has been duly authorized and validly issued in accordance with the Operating Company LLC Agreement and is fully paid (to the extent required under the Operating Company LLC Agreement) and nonassessable (except as such nonassessability may be affected by Section 18-607 of the Delaware LLC Act); and the Intermediate Partnership owns such non-managing interest free and clear of all liens, encumbrances, security interests, charges or claims (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Intermediate Partnership as debtor is on file in the office of the Secretary of State of the State of Delaware or (B) otherwise known to such counsel, without independent investigation, other than those created by or arising under the Delaware LLC Act.
(xv) The Partnership Agreement has been duly authorized, executed and delivered by the Company;General Partners and is a valid and legally binding agreement of the General Partners, enforceable against the General Partners in accordance with its terms; the Managing General Partner LLC Agreement has been duly authorized, executed and delivered by Alliance Management Holdings, LLC and AMH II, LLC and is a valid and legally binding agreement of Alliance Management Holdings, LLC and AMH II, LLC, enforceable against such parties in accordance with its terms; the Special General Partner LLC Agreement has been duly authorized, executed and delivered by Alliance Resource Holdings, Inc. and is a valid and legally binding agreement of Alliance Resource Holdings, Inc., enforceable against such party in accordance with its terms; the Intermediate Partnership Agreement has been duly authorized, executed and delivered by the General Partners and the Partnership and is a valid and legally binding agreement of the General Partners and the Partnership, enforceable against the General Partners and the Partnership in accordance with its terms; and the Operating Company LLC Agreement has been duly authorized, executed and delivered by each of the Managing General Partner and the Intermediate Partnership and is a valid and legally binding agreement of the Managing General Partner and the Intermediate Partnership, enforceable against each of them in accordance with its terms; provided that, with respect to each agreement described in this paragraph, the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors' rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and provided, further, that the indemnity, contribution and exoneration provisions contained in any of such agreements may be limited by public policy and applicable law relating to fiduciary duties, indemnification and contribution.
(viixvi) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof Except as described in the ProspectusFinal Prospectus and for rights that have been waived, will not bethere are no preemptive rights or other rights to subscribe for or to purchase, an “investment company” as defined nor any restriction upon the voting or transfer of, any limited partner interests in the Investment Partnership or the Intermediate Partnership or any interest in the Operating Company Act pursuant to the Partnership Agreement, the Intermediate Partnership Agreement and the Operating Company LLC Agreement. To such counsel's knowledge, neither the filing of 1940, the Registration Statement nor the offering or sale of the Units as amended;
(viii) no consent, approval, authorization, filing with contemplated by this Agreement gives rise to any rights for or order relating to the registration of any court Units or governmental agency other securities of the Partnership or body is required the Intermediate Partnership or any interest in connection with the transactions contemplated herein, except such Operating Company other than as provided in the Final Prospectus or as have been obtained under waived. The Partnership has all requisite power and authority to issue, sell and deliver the Act Units, in accordance with and such as may be required under upon the blue sky laws of any jurisdiction terms and conditions set forth in connection with this Agreement, the purchase Partnership Agreement and distribution the Registration Statement and Final Prospectus.
(xvii) This Agreement has been duly authorized and validly executed and delivered by each of the Securities Alliance Parties.
(xviii) None of the offering, issuance and sale by the Underwriters in Partnership of the manner contemplated in Units, the execution, delivery and performance of this Agreement and in by the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the SecuritiesAlliance Parties, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor or the consummation of the Merger transactions contemplated hereby (including the acquisition of Warrior Coal, LLC, on the terms described in the Final Prospectus) (A) conflicts or will conflict withwith or constitutes or will constitute a violation of the agreement of limited partnership, result in limited liability company agreement, the certificate or articles of incorporation or bylaws or other organizational documents of any of the Alliance Parties, (B) conflicts or will conflict with or constitutes or will constitute a breach or violation of, or a default under (or an event which, with notice or lapse of time or both, would constitute such an event), any agreement filed as an exhibit to the Registration Statement, (C) results or will result in any violation of the Delaware LP Act, the Delaware LLC Act, the DGCL, or federal law, or (D) results or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of any of the Company or Alliance Entities, which in the Subsidiaries pursuant tocase of clauses (B), (iC) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iiiD) any statute, law, rule, regulation, judgment, order or decree applicable would reasonably be expected to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablcondit
Appears in 1 contract
Sources: Underwriting Agreement (Alliance Resource Partners Lp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder 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 Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:its
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree Representative agrees in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM PM, New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM PM, New York City time on such date or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM PM, New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused furnished to the Representative the opinion of Lath▇▇ & ▇atk▇▇▇, ▇▇▇▇ ▇▇▇▇▇ LLP, counsel unsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the RepresentativesDate, to the effect that:
(i) each the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware with full corporate power and authority to own its properties and conduct its business as described in the Prospectus. Prior to the Effective Time, AHIC and FGCC are the only subsidiaries of the Company. Immediately after the Effective Time, ATX Technologies the Post-Effective Subsidiaries will be the only subsidiaries of the Company. SCPIE has been and, until immediately prior to the Effective Time, will be a reciprocal insurance exchange duly organized under the laws of the State of California and ATX Europe GmbH (“ATX Europe”) has been and will be in compliance in all material respects with the requirements of the State of California providing for the organization and regulation of reciprocal insurance exchanges; and, through SCPIE Management has full power and authority to own its properties and conduct its business as described in the Prospectus. Each of the Post-Effective Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus. Each of the Company, SCPIE and each Post-Effective Subsidiary is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;each
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe each Post-Effective Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, nonassessable and, except as otherwise set forth in immediately after the ProspectusEffective Time, all outstanding shares of capital stock of ATX Technologies and ATX Europe are the Post-Effective Subsidiaries will be owned by the Company Company, either directly or through wholly owned subsidiaries Post-Effective Subsidiaries, free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claimclaims, lien liens or encumbranceencumbrances;
(iii) the Company’s 's authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Merger Shares have been duly and validly authorized, and, when issued and delivered to Eligible Members in exchange for their Membership Interests as provided in the Plan, will be fully paid and nonassessable; the Securities being sold hereunder by and the Company are Merger Shares have been duly listed, and admitted and authorized for tradinglisting, subject to official notice of issuance and evidence of satisfactory distributionissuance, on the Nasdaq National MarketNew York Stock Exchange; the certificates for the Securities are in valid and sufficient formthe Merger Shares conform to the requirements of the Delaware General Corporation Law and the New York Stock Exchange; and neither the holders of outstanding shares of capital stock of the Company Company, the Eligible Members nor the other policyholders of SCPIE are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company Company, SCPIE or any of the Post- Effective Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit theretoexhibit, which is not described or filed as required; and the statements included in the Prospectus under the headings “headings, "The Reorganization", -18- 20 "Business--Regulation", "Business--Litigation" and "Description of Capital Stock,” “Certain Relationships " have been reviewed by such counsel and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements fairly summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedingsthe matters therein described;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, therein as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on at the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion)misleading;
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with authorization or order of any court or governmental agency or body is required in connection with for the consummation of the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws or insurance securities laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in Underwriters; and no consent, approval, authorization or order of any court or governmental agency or body is required for the manner consummation of the transactions contemplated in this Agreement and in by the Prospectus and Plan, except such other approvals (specified in such opinion) as have been obtainedobtained and are in full force and effect under the Act, the California Insurance Law, the California Corporations Law and the blue sky laws and insurance securities laws of various jurisdictions in connection with the issuance of the Merger Shares to the Eligible Members;
(ixviii) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation issue and delivery of the Merger will conflict withShares, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;nor
(xix) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(x) each of the Company and SCPIE Indemnity has full corporate power and authority to execute and deliver the Plan and to perform its respective obligations thereunder; SCPIE (either directly or through SCPIE Management) has full power and authority to execute and deliver the Plan and to perform its obligations thereunder; the execution and delivery of the Plan by the Company, SCPIE and SCPIE Indemnity have been duly and validly authorized and approved by all required action on the part of the Company, SCPIE and SCPIE Indemnity; the Plan has been duly executed and delivered by the Company, SCPIE and SCPIE Indemnity and constitutes a valid and legally binding obligation of the Company, SCPIE and SCPIE Indemnity, enforceable against each of them in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights generally and except that the availability of equitable remedies, including specific performance, is subject to the discretion of the court before which any proceeding therefor may be brought; the Plan conforms in all material respects to the requirements of the California Insurance Law applicable to the reorganization of reciprocal insurance exchanges into stock insurance companies; all necessary approvals under the California Insurance Law for the consummation of the transactions contemplated by the Plan have been obtained; the Reorganization and the Merger have been completed in accordance with the Plan, the Commissioner's Order and the California Insurance Law, and all the rights (including, without limitation, rights in respect of contracts, reinsurance treaties, leases, licenses and trademarks) and
(xi) the Merger complied Registration Statement has become effective under the Act; any required filing of the Proxy Statement/Prospectus, and any supplement thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Merger Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened and the Merger Registration Statement and the Proxy Statement/Prospectus (other than the financial statements and other financial and statistical information contained therein as to which such counsel need express no opinion) comply as to form in all material respects with the applicable law requirements of the Act and did the rules thereunder; and such counsel has no reason to believe that at the effective date of the Merger Registration Statement and on the Special Meeting Date, the Merger Registration Statement contained any 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 require misleading or that the consent Proxy Statement/Prospectus included any untrue statement of a material fact or approval omitted to state a material fact necessary to make the statements therein, in the light of any third party that was the circumstances under which they were made, not obtainedmisleading;
(xii) in connection with the Merger, the Company properly (A) exchanged all each of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed the Post-Effective Subsidiaries owns, possesses or has obtained all of material governmental licenses, permits, certificates, consents, orders, approvals and other authorizations necessary to own or lease, as the outstanding stock options case may be, and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law to operate its properties and any contractual obligations of ATX Technologies and the Companyto carry on its business as currently conducted;
(xiii) each of the Merger was Insurance Subsidiaries is duly licensed or authorized by to conduct its insurance business under the Companyinsurance laws of each jurisdiction in which it conducts such business so as to require such licensing or authorization; all such licenses or authorizations are in full force and effect and such counsel is not aware of any event, inquiry, investigation or proceeding that would reasonably be expected to result in the Merging Entity and ATX Technologies;suspension, revocation or limitation of any such licenses or authorizations or otherwise impose any limitation on the conduct of the business of the Company or any Insurance Subsidiary,
(xiv) to the Merger is legalbest knowledge of such counsel, effective all reinsurance treaties and valid and was consummated in accordance with the laws arrangements to which any of the State Insurance Subsidiaries is a party are in full force and effect and none of Texas the Insurance Subsidiaries is in violation of or in default in the performance, observance or fulfillment of, any obligation, agreement, covenant or condition contained therein and upon the State effectiveness of the Merger, all such treaties and arrangements to which SCPIE is a party shall remain in full force and effect and inure to the benefit of, and be enforceable by, SCPIE Indemnity;
(xv) neither the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) Company nor any of the Internal Revenue Code of 1986Post-Effective Subsidiaries is and, as amended; and
(xvi) after giving effect to the issuance offering and sale of the Common Stock in connection with Securities, neither the Merger was exempt from the registration provisions Company nor any of the Post-Effective Subsidiaries will be, an "investment company" or an entity "controlled" by an "investment company" as such terms are defined in the Investment Company Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas California [and the General Corporation Law of the State of Delaware Delaware] or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives Representative shall have received from LeBoeuf, Lamb, Gree▇▇ & ▇acR▇▇, ▇▇▇ ▇▇▇▇▇ L.L.P..L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.and
(d) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date 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 the Merger Registration Statement 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on change in the condition (condition, financial or otherwise)other, earnings, business, prospects, earnings, business properties or properties results of operations of the Company Company, SCPIE and its Subsidiaries, taken the Post-Effective Subsidiaries considered as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder At the Execution Time and at the Closing Date, Ernst & Young LLP shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinionRepresentative a letter or letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the RepresentativesRepresentative, to confirming that they are independent accountants within the meaning of the Act and the applicable published rules and regulations thereunder and stating in effect that:
(i) this Agreement in their opinion the audited combined financial statements and financial statement schedules of SCPIE and OSCAP and the Custody Agreement and Power audited balance sheet of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, Company included in the Custody Agreement is valid and binding on the Selling Stockholder, Registration Statement and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; Prospectus and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliabl
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP▇▇▇▇, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies Company and ATX Europe GmbH its significant subsidiaries as defined by Rule 1-02 of Regulation S-X (“ATX Europe”the "Significant Subsidiaries") has been duly incorporated and is validly existing as a corporation or limited liability company in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power power, or, in the case of DGS, limited liability company power, and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation or limited liability company and is in good standing under the laws of each jurisdiction which requires such qualificationlisted on Schedule II attached hereto;
(ii) all the outstanding shares of capital stock of ATX Technologies the Company and ATX Europe DigitalNet, Inc. have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth ; all outstanding membership interest of DGS were issued in conformity with the Prospectus, Delaware Limited Liability Company Act; and all outstanding shares of capital stock or membership interests of ATX Technologies and ATX Europe each subsidiary listed on Schedule III are owned of record by the Company either directly or through wholly its wholly-owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrancesubsidiary;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; Prospectus under the outstanding shares caption "Description of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessableCapital Stock"; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National MarketNew York Stock Exchange; the certificates for the Securities Securities, assuming they are in valid the form filed with the Commission, are in due and sufficient formproper form under the Delaware General Corporation Law; and the holders of outstanding shares of capital stock of the Company are not entitled to statutory preemptive or or, to such counsel's knowledge, other similar contractual rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counselcounsel and other than as set forth in the Prospectus, (a) there is are no pending or threatened action, suit or proceeding by or before any court legal or governmental agency, authority or body or any arbitrator involving proceedings pending to which the Company or any of the Subsidiaries its subsidiaries is a party or its or their of which any property of a character the Company or any of its subsidiaries is the subject which are required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectuspursuant to Item 103 of Regulation S-K, and (b) no such proceedings are threatened or contemplated against the Company or any of its subsidiaries; and, to the knowledge of such counsel, there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stockheading "Government Contracting and Regulatory Process,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case " insofar as such statements summarize summarize, in general terms, the legal matters, agreements, documents or proceedings matters discussed therein, are accurate and are, in all material respects, fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, issued and no proceedings for that purpose have been instituted or threatened and threatened;
(vi) the Registration Statement and the Prospectus (other than the financial statements statements, including the notes and schedules thereto, and other financial and statistical information contained thereinderived therefrom, as to which such counsel need express no opinion) comply as appeared on their face to form be responsive in all material respects with to the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vivii) this Agreement has been duly authorized, executed and delivered by the Company;
(viiviii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viiiix) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act or the Securities Exchange Act of 1934, as amended, or any order, rule or regulation thereunder, and such as may be required by the NASD or under the blue sky state securities laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;Prospectus; and
(ixx) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the its Significant Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Significant Subsidiaries, (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 or the Subsidiaries its subsidiaries is a party or bound or to which it or its or their property is subjectsubject that has been filed as an exhibit to the Registration Statement, PROVIDED, HOWEVER, that such counsel need express no opinion with respect to any violation, conflict, breach or default that arises under or is based upon any covenant of a financial or numerical nature or which requires arithmetic computation, (iii) any statute, law, rule, regulationregulation of any governmental agency or authority of the United States or the State of New York or the Delaware General Corporation Law or the Delaware Limited Liability Company Act (except federal and state securities laws) or (iv) to the knowledge of such counsel, any judgment, order or decree applicable to the Company or the Subsidiaries its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries its subsidiaries or any of its or their properties;
. In addition, such counsel shall state that, in the course of the preparation by the Company of the Registration Statement and the Prospectus, they have participated in conferences with certain of the officers and representatives of, and the independent public accountants for, the Company, at which the Registration Statement and the Prospectus were discussed. Such counsel shall also state that between the date of effectiveness of the Registration Statement and the time of delivery of this letter, they have held additional conferences with certain of the officers and representatives of, and the independent public accountants for, the Company, at which the contents of the Prospectus were discussed to a limited extent. Such counsel shall state that given the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process, (x) except as expressly set forth in their opinion) they are not passing upon or contemplated assuming any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus (exclusive of any supplement thereto), and have made no holders of securities independent check or verification thereof. Such counsel shall also state that subject to the foregoing and on the basis of the Company have rights to information gained in the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all performance of the outstanding shares of ATX Technologies’ Series Aservices referred to above, Series Bincluding information obtained from officers and other representatives of, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by independent public accountants for, the Company, no facts have come to such counsel's attention that have caused them to believe that the Merging Entity Registration Statement and ATX Technologies;
(xiv) the Merger is legalProspectus included therein, as of its effective and valid and was consummated date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in accordance with order to make the laws statements therein not misleading or that the Prospectus, as of its date, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the State circumstances under which they were made, not misleading. Also, such counsel shall state, subject to the foregoing, no facts have come to their attention in the course of Texas and proceedings described in the State second sentence of ;
(xv) this paragraph that cause them to believe that the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) Prospectus, as of the Internal Revenue Code date and time of 1986delivery of such letter, as amended; and
(xvi) contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the issuance statements therein, in light of the Common Stock circumstances in connection which they were made, not misleading. Such counsel shall also state that in each case, however, they expresses no view or belief with the Merger was exempt respect to financial statements, notes or schedules thereto or other financial or statistical data included in or omitted from the registration provisions of the ActRegistration Statement or Prospectus. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Cravath, Swaine & ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiariessubsidiaries, 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 Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder Company shall have requested and caused , counsel for the Selling Stockholder, Ernst & Young LLP to have furnished to the Representatives their opinionletters, at the Execution Time and at the Closing Date, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives, to confirming that they are independent accountants within the meaning of the Act and the applicable rules and regulations adopted by the Commission thereunder and stating in effect that:
(i) this Agreement in their opinion the audited financial statements and financial statement schedules included in the Registration Statement and the Custody Agreement Prospectus and Power reported on by them comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed the Act and delivered the related rules and regulations adopted by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderCommission;
(ii) assuming that each Underwriter acquires its interest in on the Securities it has purchased from the Selling Stockholder without notice basis of any adverse claim (within the meaning of Section 8-105 a reading of the UCC), each Underwriter that has purchased such Securities delivered on latest unaudited financial statements made available by the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts 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 such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter significance with respect to the comments set forth in such Securitiesletter; a reading of the minutes of the meetings of the stockholders, directors and audit and compensation committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to December 31, 2002, 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 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;
(iii2) no consentwith respect to the period subsequent to December 31, approval2002, authorization 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 or order other liabilities of any court the Company and its subsidiaries or governmental agency the capital stock of the Company or body is required decreases in the stockholders' equity or total assets of the Company as compared with the amounts shown on the December 31, 2002, consolidated balance sheet included in the Registration Statement and the Prospectus, or for the consummation period from January 1, 2003, to such specified date there were any decreases, as compared with the results of DGS and its subsidiaries for the corresponding period in the prior years, in revenues, gross profits, operating income, income before provision for income taxes, net income or earnings per share 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 Selling Stockholder of the transactions contemplated herein, except such Company as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablsignificance thereof unl
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder 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 Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 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 their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) Company has been duly incorporated or formed, as applicable, and is validly existing as a corporation or other entity in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;set forth opposite its name on Exhibit B hereto.
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized equity capitalization is as set forth in the Final Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Final Prospectus; the outstanding shares of Common Stock (including the Securities being sold hereunder by the Selling Stockholders) have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold by the Selling Stockholders are duly listed, and admitted and authorized for trading, on the Nasdaq National Market and the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distributionissuance, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to statutory preemptive or or, to such counsel’s knowledge, other similar contractual rights to subscribe for the Securities; and, except as set forth in the Final Prospectus, to such counsel’s knowledge no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iviii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and and, to the knowledge of such counsel, there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(viv) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the respective rules thereunder; and based upon such counsel counsel’s representation of the Company, nothing has no reason come to its attention that causes it to believe that on the Effective Date or the date the Registration Statement was last deemed amended, amended the Registration Statement contained any 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 on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(viv) this Agreement has been duly authorized, executed and delivered by the Company;
(viivi) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viiivii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Final Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ixviii) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or charter, by-laws or similar organization documents of the Company or its SubsidiariesCompany, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, and which is set forth on Exhibit C hereto or (iii) any statute, law, rulerule or regulation or, regulationto such counsel’s knowledge, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;; and
(xix) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto)Prospectus, to such counsel’s knowledge, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and New York, the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Each Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, satisfactory to Citigroup Global Markets Inc. to have furnished to the Representatives their opinion, an opinion dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the such Selling Stockholder, the Custody Agreement is valid and binding on the such Selling Stockholder, Stockholder and the such Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the such Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the such Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the such Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the such Selling Stockholder or the fulfillment of the terms hereof by the such Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law generally applicable to transactions of the type described in this Agreement or the charter or Bycharter, by-laws or similar organizational documents, of the such Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or boundStockholder, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiariesas applicable. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablreliable and who are satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of such Selling Stockholder or responsible officers of such Selling Stockholder, as applicable, and public officials.
(d) The Representatives shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the 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 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 Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus 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 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 Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, 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 Final Prospectus (exclusive of any supplement thereto).
(f) Each Selling Stockholder shall have furnished to the Representatives a certificate, signed by such Selling Stockholder or, if applicable, the Chairman of the Board or the President and the principal financial or accounting officer of such Selling Stockholder (or by officers of such Selling Stockholder performing similar functions) dated the Closing Date, to the effect 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 Company shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for the nine-month period ended September 30, 2003, and 2004, as at September 30, 2003, and 2004, 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 and included or incorporated by reference in the Registration Statement and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the nine-month period ended September 30, 2003, and September 30, 2004, and as at September 30, 2003, and 2004, incorpo
Appears in 1 contract
Sources: Underwriting Agreement (Audible 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 of the representations and warranties on the part of the Company and the Selling Stockholder 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 Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:Company
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused furnished to the Representatives the opinion of O'Co▇▇▇▇, ▇▇vanagh, Anderson, Kill▇▇▇▇▇▇▇▇▇ & ▇esh▇▇▇▇▇ LLP, ▇.A., counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies Company and ATX Europe GmbH (“ATX Europe”) its Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full the requisite corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and has the requisite authority to operate its boat dealership business under dealership agreements and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires set forth on a schedule to such qualificationopinion;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock Mergers of the Company conforms in all material respects to and the description thereof contained Subsidiaries as described in the Prospectus; the outstanding shares of Common Stock Prospectus have been duly completed and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice do not constitute any violation of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchaseany material contracts, agreements or other obligations to issue, or rights to convert of any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the ProspectusSubsidiaries, and there is no franchise, contract all the necessary consents or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as waivers have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing DateMergers.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliabl
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Underwriters' Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Ball▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP& ▇nge▇▇▇▇▇, counsel ▇▇unsel for the Company, to shall have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, Representatives to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualificationqualification and the Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe the Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe the Subsidiary are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Final Prospectus; the capital stock of the Company conforms Securities conform in all material respects to the description thereof contained in the Final Prospectus;
(iv) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect); and the outstanding shares of Common Stock Securities have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listedconstitute legal, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock binding obligations of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in benefits of the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstandingIndenture;
(ivv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries its subsidiaries or its or their property property, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included or incorporated by reference in the Final Prospectus describing any legal proceedings or material contracts or 8 8 agreements relating to the Company and the statements in the Final Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements listed on Schedule I hereto fairly summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedingsthe matters therein described;
(vvi) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 threatened, and the Registration Statement and the Final Prospectus (other than the financial statements and other financial and or statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date or at the date the Registration Statement was last deemed amended, Execution Time the Registration Statement contained any 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 on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion)misleading;
(vivii) this Agreement has been duly authorized, executed and delivered by the Company;
(viiviii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Prospectus, will not be, be an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viiix) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with neither the transactions contemplated herein, except such as have been obtained under the Act execution and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution delivery of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither Indenture, the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries its subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiariessubsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed the material agreements of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or the Subsidiaries is a party or bound or Subsidiary known to which its or their property is subjectsuch counsel, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries Subsidiary or any of its or their properties;; and
(xxi) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Cravath, Swaine & Moor▇, ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel unsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date 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 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 (other than capsule information), audited or unaudited, included or incorporated by reference in the Registration Statement and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiariessubsidiaries, 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 Final Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder At the Execution Time and the Closing Date, the Company shall have requested and caused , counsel for the Selling Stockholder, Ernst & Young LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives, to confirming that they are independent accountants within the effect meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and that they have performed a review of the unaudited interim financial information of the Company for the periods listed on Schedule I hereto in accordance with Statement on Auditing Standards No. 71, and stating in effect, except as provided in Schedule I hereto, that:
(iii) this Agreement on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 71, of the unaudited interim financial information for the periods listed on Schedule I hereto, as indicated in their report incorporated by reference in the Registration Statement and the Custody Agreement and Power Final Prospectus; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of Attorney have been duly authorizedsignificance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, directors and the Selling Stockholder has full legal right executive, audit and authority trust 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 sell, transfer transactions and deliver events subsequent to the date of the most recent audited financial statements included or incorporated by reference in the manner provided Registration Statement and Final Prospectus, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated by reference in this Agreement the Registration Statement and the Custody Agreement Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Securities being sold Act and with the published rules and regulations of the Commission with respect to financial statements included or incorporated by such Selling Stockholder hereunderreference in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus;
(ii2) assuming that each Underwriter acquires its interest financial statements (other than capsule information), audited or unaudited, included or incorporated by reference in the Securities it has purchased from Registration Statement and the Selling Stockholder without notice Final Prospectus to such specified date there were any decreases, as compared with the corresponding period in the preceding year in net revenues or income before income taxes or in total or per share amounts of any adverse claim (within the meaning of Section 8-105 net income or net interest income of the UCCCompany 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 Representatives;
(3) the information included or incorporated by reference in the Registration Statement and Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), each Underwriter that has purchased such Securities delivered on Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts applicable disclosure requirements of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8Regulation S-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;K; and
(iii) no consentthey have performed certain other specified procedures as a result of which they determined that certain information of an accounting, approvalfinancial or statistical nature (which is limited to accounting, authorization financial or order statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Final Prospectus and in Exhibit 12 to the Registration Statement, including the information set forth under the captions in the Final Prospectus specified on Schedule I hereto, the information included or incorporated by reference in Items 1, 2, 6, 7 and 11 of the Company's Annual Report on Form 10-K, incorporated by reference in the Registration Statement and the Final Prospectus, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated by reference in the Company's Quarterly Reports on Form 10-Q, incorporated by reference in the Registration Statement and the Final Prospectus and to any information appearing in a Current Report on Form 8-K incorporated by reference in the Registration Statement and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any court amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or governmental agency decrease specified in the letter or body is required for letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the consummation by the Selling Stockholder condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions contemplated hereinin the ordinary course of business, except such as may have been obtained under set forth in or contemplated in the Act and such as may be required under the blue sky laws Final Prospectus (exclusive of any jurisdiction supplement thereto) the effect of which, in connection 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 purchase and distribution offering or delivery of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or Registration Statement (exclusive of any amendment thereof) and the fulfillment Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the terms hereof Company's debt securities by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely "nationally recognized statistical rating organization" (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliabldefined for purpos
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The ------------------------------------------------- obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 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 their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and the Company is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualificationthe states of California, Texas and Minnesota;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s 's authorized equity capitalization is as set forth in the section captioned "Description of Capital Stock" in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and and, to such counsel's knowledge, are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the SecuritiesSecurities other than those rights that have been waived or terminated due to lapse of time; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iviii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “"United States Tax Consequences to Non-United States Holders", "Description of Capital Stock--Anti-Takeover Provisions of our Amended and Restated Certificate of Incorporation and By-laws and Delaware Law,” “Certain Relationships " and Related Party Transactions,” “"Shares Eligible for Future Sale” and “Underwriting”, in each case " insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(viv) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(viv) this Agreement has been duly authorized, executed and delivered by the Company;
(viivi) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viiivii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the rules of the NASD and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ixviii) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, of or imposition of any lien, charge or encumbrance upon any material property or assets of the Company or the Subsidiaries its subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiariessubsidiaries, (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 or the Subsidiaries its subsidiaries is a party or bound or to which its or their property is subjectsubject that is filed as an exhibit to the Registration Statement, or (iii) any statute, law, rule, regulation, rule or regulation which such counsel would reasonably conclude was applicable to the issue and sale of the Securities or any judgment, order or decree applicable to the Company or the Subsidiaries its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries its subsidiaries or any of its or their properties;; and
(xix) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval Statement other than those holders of any third party that was not obtained;
(xii) in connection with the Merger, Securities of the Company properly (A) exchanged all who have waived such rights or whose rights have expired by reason of lapse of time following notification of the outstanding shares Company's intent to file a Registration Statement. Such counsel shall also state that such counsel has participated in conferences with officials and other representatives of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity Representatives, counsel for the Underwriters and ATX Technologies;
(xiv) the Merger is legalindependent certified public accountants of the Company, at which conferences the contents of the Registration Statement and Prospectus and related matters were discussed, and although such counsel has not verified the accuracy or completeness of the statements contained in the Registration Statement or the Prospectus, nothing has come to such counsel's attention that leads such counsel to believe that, at the time the Registration Statement became effective and valid at all times subsequent thereto up to and was consummated on the Closing Date, the Registration Statement and any amendment or supplement thereto (except that such counsel expresses no opinion as to the financial statements and schedules and other financial or statistical data contained therein) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or at the Closing Date the Registration Statement, the Prospectus and any amendment or supplement thereto (except as aforesaid) contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in accordance with the laws light of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986circumstances under which they were made, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Actnot misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and California, the State General Corporate Law of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Company shall have requested and caused ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & Sutcliffe LLP, patent counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in the form of Exhibit B hereto.
(d) The Company shall have requested and caused ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, regulatory counsel for the Company, to have furnished their opinion, dated the Closing Date and addressed to the Representatives in the form of Exhibit C hereto.
(e) The Representatives shall have received from Cravath, Swaine & ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(df) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer and President and the principal financial or accounting officer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto)Material Adverse Effect.
(eg) The Selling Stockholder Company shall have requested and caused , counsel for the Selling StockholderDeloitte & Touche LLP, to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives, to confirming that they are independent accountants within the meaning of the Act and the applicable rules and regulations adopted by the Commission thereunder and stating in effect that:
(i) this Agreement in their opinion the audited financial statements and financial statement schedules included in the Registration Statement and the Custody Agreement Prospectus and Power reported on by them comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed the Act and delivered the related rules and regulations adopted by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderCommission;
(ii) assuming that each Underwriter acquires its interest in on the Securities it has purchased from the Selling Stockholder without notice basis of any adverse claim (within the meaning of Section 8-105 a reading of the UCC), each Underwriter that has purchased such Securities delivered on latest unaudited financial statements made available by the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts 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 such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter significance with respect to the comments set forth in such Securitiesletter; a reading of the minutes of the meetings of the stockholders, directors and audit 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 September 30, 2000 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 September 30, 2000, 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 or working capital of the Company and its subsidiaries or total assets of the Company or decreases in the total stockholders' equity of the Company as compared with the amounts shown on the September 30, 2000 balance sheet included in the Registration Statement and the Prospectus, or for the period from October 1, 2000 to such specified date there were any decreases, as compared with the corresponding period in the prior year in net revenues, income from operations, net income, net loss available to common stockholders or basic and diluted net loss per share 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 Representatives;
(3) the information included in the Registration Statement and Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information) and Item 402 (Executive Compensation) is not in conformity with the applicable disclosure requirements of Regulation S-K;
(iii) no consentthey have performed certain other specified procedures as a result of which they determined that certain information of an accounting, approvalfinancial or statistical nature (which is limited to accounting, authorization financial or order of any court or governmental agency or body is required for statistical information derived from the consummation by the Selling Stockholder general accounting records of the transactions contemplated hereinCompany and its subsidiaries) set forth in the Registration Statement and the Prospectus, except such as may have been obtained including the information set forth under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablcaptions "Prospectus Summary--Summary Financial Data," "Risk Factors," "Dilution," "Capitalization," "Selected Financial Data," Management's Discussion an
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The -------------------------------------------------- obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPKing & Spalding, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Prospectus, ; and the Company is duly qualified registered as a bank holding company under the Bank Holding Company Act of 1956, as amended;
(ii) each subsidiary constituting 10% or more of the assets of the Company as of such date (each such subsidiary being hereinafter referred to as a "Significant Subsidiary") that is a national banking association holds a valid Certificate of Authority from the Comptroller to do business as a foreign corporation and is in good standing national banking association under the laws of each jurisdiction which requires such qualification;
(ii) the United States; and all the outstanding issued shares of capital stock of ATX Technologies and ATX Europe each Significant Subsidiary have been duly and validly authorized and issued and issued, are fully paid and nonassessable(except, andin the case of any national banking association, as provided in 12 U.S.C. (S) 55, as amended) non- assessable and (except as otherwise set forth in the Prospectus) are owned directly or indirectly by the Company, to such counsel's knowledge free and clear of liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that they believe you and they are justified in relying upon such certificates);
(iii) each other Significant Subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all outstanding of the issued shares of capital stock of ATX Technologies each such subsidiary have been duly and ATX Europe validly authorized and issued, are fully paid and nonassessable and (except as otherwise set forth in the Prospectus) are owned directly or indirectly by the Company either directly or through wholly owned subsidiaries Company, to such counsel's knowledge free and clear of any perfected security interest andall liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the knowledge opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel, after due inquiry, any other security interest, claim, lien or encumbrancecounsel shall state that they believe that you and they are justified in relying upon such opinions and certificates);
(iiiiv) the Company’s 's authorized equity capitalization is as set forth in the Final Prospectus; [and] the capital stock of the Company conforms Securities conform in all material respects to the description thereof contained in the Final Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; [the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, trading subject to official notice of issuance [and evidence of satisfactory distribution, ] on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; Stock Exchange], and, except as set forth in the Final Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(ivv) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law); and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture;
(vi) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries its subsidiaries or its or their property property, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; [and the statements included or incorporated by reference in the Final Prospectus under the headings “Description heading[s] "Tax Matters", "Regulatory Matters" and " "[if the Final Prospectus contains a discussion of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize specific legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents regulatory matters or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing , add references to appropriate sections of the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in ] fairly summarize the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated matters therein or necessary to make the statements therein not misleading or that the Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion)described;
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliabl]
Appears in 1 contract
Sources: Underwriting Agreement (National Commerce Bancorporation)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters with respect to purchase the Underwritten Securities, and the obligation with CGML to borrow the Securities and pay the Option Securities, Loan Fee (as defined in the case may be, Share Lending Agreement) with respect thereto shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the The Prospectus, or and any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be 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 and CGML their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies Company and ATX Europe GmbH (“ATX Europe”) its subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe the subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Disclosure Package and the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued upon payment of the Loan Fee (as defined in the Share Lending Agreement) and delivered to and paid for by the Underwriters pursuant to this the Share Lending Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, trading subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Global Market; the certificates for the Securities are in valid and sufficient form; the Share Lending Agreement has been duly authorized, executed and delivered and constitutes the legal, valid and binding and enforceable instrument of the Company (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity); the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, to the knowledge of such counsel, after due inquiry, except as set forth in the Disclosure Package and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Preliminary Prospectus and the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Share Lending Agreement,” “Certain Federal Income Tax Considerations,” “Description of the Securities,” and “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements fairly summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedingsthe matters therein described;
(v) the Registration Statement has become effective under the Act; any required filing of the Base Prospectus, any Preliminary Prospectus and the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) such counsel has no reason to believe that the Disclosure Package, as amended or supplemented at the Execution Time, and the price to the public, the number of Underwritten Securities and the number of Option Securities to be included on the cover page of the Prospectus, when taken together as a whole, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion);
(vii) this Agreement has and the Share Lending Agreement have been duly authorized, executed and delivered by the Company;
(viiviii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amendedamended without the taking into account of any exemption arising out of the number of holders of the Company’s securities;
(viiiix) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated hereinherein or in the Share Lending Agreement, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase issuance by the Company and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and Agreement, in the Preliminary Prospectus, the Prospectus and such other approvals (specified in such opinion) as have been obtainedthe Share Lending Agreement;
(ixx) neither the issue execution and sale delivery of this Agreement or the Share Lending Agreement, the issuance of the Securities, nor the consummation of any other of the transactions herein contemplated, or therein contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries its subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiariessubsidiaries, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or the Subsidiaries its subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries its subsidiaries or any of its or their properties;; and
(xxi) to such counsel’s knowledge, after due inquiry, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto)Registration Rights Agreement, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives Representative shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.Zedek ▇▇▇▇▇▇, LLP, Dr. ▇▇▇▇ ▇▇▇▇▇▇▇▇ Ltd., and ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.L.C., each special counsel to the Company for intellectual property matters, such opinion or opinions, dated the Closing Date and addressed to the Representative, as set forth on items (i), (ii) and (iii) of Annex B to this Agreement.
(d) The Representatives and CGML shall have received from King & Spalding, LLP and ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives and CGML a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package and any supplements to amendment or supplement thereto, as well as each electronic road show used in connection with the Prospectus 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 Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiariessubsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(ef) The Selling Stockholder Company shall have requested and caused , counsel for the Selling Stockholder, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & Kasierer (a member of Ernst & Young Global) to have furnished to the Representatives their opinionand CGML, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives, to confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for the nine-month period ended September 30, 2006 and as at September 30, 2006, in accordance with Statement on Auditing Standards No. 100 and stating in effect that:
(i) this Agreement in their opinion the audited financial statements and financial statement schedules included in the Registration Statement and the Custody Agreement Prospectus and Power reported on by them comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed the Act and delivered the related rules and regulations adopted by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderCommission;
(ii) assuming that each Underwriter acquires on the basis of a reading of the latest unaudited financial statements made available by the Company and its interest subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the three- and nine-month period ended September 30, 2006 and as at September 30, 2006, incorporated by reference in the Securities it has purchased from Registration Statement, the Selling Stockholder without notice Preliminary Prospectus and the Prospectus, as indicated by the report incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus, carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter significance with respect to the comments set forth in such Securitiesletter; a reading of the minutes of the meetings of the stockholders, directors and audit and compensation 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, 2005 nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus;
(iii2) no consentwith respect to the period subsequent to September 30, approval2006, authorization or order of there were any court or governmental agency or body is required for changes, at a specified date not more than five days prior to the consummation by the Selling Stockholder date of the transactions contemplated hereinletter, except such as may have been obtained under in the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliabll
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused caused:
(i) ▇▇▇▇▇▇▇ ▇▇▇, Will & ▇▇▇▇▇, special counsel for the Company, to have furnished to the Underwriters their written opinion addressed to the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, substantially in the form of Annex II hereto;
(ii) ▇▇▇▇▇ Peabody LLP, counsel for the Company, to have furnished to the Representatives Underwriters their opinionwritten opinion addressed to the Underwriters, dated the Closing Date Date, in form and addressed substance reasonably satisfactory to the RepresentativesUnderwriters, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described substantially in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws form of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing DateAnnex III hereto.
(c) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P.& ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus 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 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 Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement and the Final Prospectus. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) The Company shall have requested and caused PricewaterhouseCoopers to have furnished to the Representatives, at the Execution Time, a letter, dated as of the Execution Time, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information relating to Hardy included or incorporated by reference in the Registration Statement and the Final Prospectus. References to the Final 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) 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 paragraphs (e) through (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and 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 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 amendment thereof) and the Final Prospectus (exclusive of any supplement thereto).
(eh) The Selling Stockholder Prior to the Closing Date, the Company shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinionsuch further information, dated certificates and documents as the Closing Date Representatives may reasonably request.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(j) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each person or entity that is identified on Schedule III hereto, addressed to the Representatives.
(l) The Certificate of Designations shall have been duly filed with the Secretary of State and shall have become effective under the General Corporation Law of the State of Delaware.
(m) The Common Stock Shares shall have been approved for listing on the New York Stock Exchange, subject only to notice of issuance.
(n) The Independent Underwriter shall have delivered to the effect that:
(i) Company, ▇.▇. ▇▇▇▇▇▇ Securities Inc., Citigroup Global Markets Inc. and UBS Securities LLC a letter substantially in the form of Exhibit B hereto. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Custody Agreement and Power Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of Attorney have been duly authorized, executed and 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 Selling Stockholderoffice of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Custody Agreement is valid and binding on the Selling StockholderUnderwriters, and the Selling Stockholder has full legal right and authority to sellat ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC)▇▇▇ ▇▇▇▇, each Underwriter that has purchased such Securities delivered ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablDate.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Capital 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 Trust and the Selling Stockholder Guarantor contained herein as of the Execution Timedate hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and any settlement date pursuant to Section 3 hereofas of the Closing Date, to the accuracy of the statements of the Company Trust and the Selling Stockholder Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company Trust and the Selling Stockholder Guarantor of its their obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be 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 Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or threatenedthreatened by the Commission; and the Final Prospectus shall have been filed with the Commission pursuant to Rule 424(b) not later than the close of business on the second business day following the execution and delivery of this Agreement.
(b) The Company Trust and the Guarantor shall have requested and caused furnished to the Representative the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for Senior Counsel of the CompanyGuarantor, to have furnished or another senior lawyer of the Guarantor satisfactory to the Representatives their opinionRepresentative, dated the Closing Date and addressed to the RepresentativesDate, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) Guarantor has been duly incorporated and is a validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedState of Delaware, with full has the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Prospectus, and is duly registered as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956, as amended; each of ▇▇▇▇▇ Fargo Bank Minnesota, National Association (“▇▇▇▇▇ Minnesota”) and ▇▇▇▇▇ Fargo Bank, National Association (“▇▇▇▇▇ Fargo Bank”) is a national banking association authorized to transact the business of banking under the National Bank Act of 1864, as amended; and WFC Holdings Corporation (“WFC Holdings” and together with Wells Minnesota and ▇▇▇▇▇ Fargo Bank, the “Significant Subsidiaries”) is a duly organized and validly existing corporation under the laws of the State of Delaware;
(ii) each of the Guarantor and the Significant Subsidiaries is duly qualified to do business as a foreign corporation and is in good standing under the laws of in each jurisdiction which requires such qualificationqualification wherein it owns or leases any material properties or conducts any material business, except where the failure to so qualify would not have any material adverse effect upon the business, condition or properties of the Guarantor and its subsidiaries, taken as a whole;
(iiiii) all of the outstanding shares of capital stock of ATX Technologies and ATX Europe each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and (except as provided in 12 ▇.▇.▇. §▇▇ in the case of ▇▇▇▇▇ Fargo Bank and Wells Minnesota) nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned directly or indirectly by the Company either directly or through wholly owned subsidiaries Guarantor free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interestinterests, claimclaims, lien liens or encumbranceencumbrances;
(iiiiv) the Company’s number and type of equity securities the Guarantor is authorized capitalization to issue is as set forth in the Final Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(ivv) to the knowledge of such counsel’s knowledge, there is are no legal or governmental proceedings pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character which are required to be disclosed in the Registration Statement which is not adequately Final Prospectus, other than as disclosed in the Prospectustherein, and there is no franchise, contract or other document of a character required to be described or referred to in the Registration Statement or Prospectus, or required to be filed as an exhibit thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, which is not described or filed as required; and the description thereof or references thereto are correct;
(vi) neither the issue and sale of the Capital Securities and the Debentures, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof or the Indenture, the Debentures, the Trust Agreement or the Guarantee Agreement will result in a breach of, or constitute a default under, any indenture or other agreement or instrument to which the Guarantor or any Significant Subsidiary is a party or bound and which constitutes a material contract and is set forth as an exhibit to the Guarantor’s most recent Annual Report on Form 10-K or any subsequent Quarterly Reports on Form 10-Q or Current Report on Form 8-K, or any other indenture or material agreement or instrument known to such counsel and to which the Guarantor or any Significant Subsidiary is a party or bound, the breach of which would result in a material adverse effect on the financial condition of the Guarantor and its subsidiaries, taken as a whole, or violate any order or regulation known to such counsel to be applicable to the Guarantor or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Guarantor or any Significant Subsidiary; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or By-Laws of the Guarantor;
(vii) the statements included in the Final Prospectus (other than statements furnished in writing to the Trust or the Guarantor by or on behalf of an Underwriter through the Representative, it being understood and agreed that the only such information furnished by any Underwriter consists of such information described as such in the Blood Letter) under the headings captions “Description of Junior Subordinated Debentures”, “Description of Capital StockSecurities”, “Description of Guarantee”, “Relationship Among the Capital Securities, the Junior Subordinated Debentures and the Guarantee,” “Certain Relationships Underwriters”, “Description of Junior Subordinated Debt Securities”, “Description of Trust Preferred Securities”, “Description of Guarantees”, “Relationship Among Trust Preferred Securities, Corresponding Junior Subordinated Debt Securities and Related Party TransactionsGuarantees,” “Shares Eligible for Future Sale” and “Underwriting”, in each case Plan of Distribution” insofar as such statements they purport to summarize legal matters, agreements, certain provisions of documents or proceedings discussed laws specifically referred to therein, are accurate and fair summaries of such legal matters, agreements, documents provisions or proceedingslaws or of the sources from which such summaries were derived;
(vviii) the Indenture has been duly authorized, executed and delivered by the Guarantor, has been duly qualified under the Trust Indenture Act, as amended, and (assuming the Indenture has been duly authorized, executed and delivered by the Debenture Trustee) constitutes a valid and legally binding instrument enforceable against the Guarantor in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and subject to general equity principles and except further as enforcement thereof may be limited by any governmental authority that limits, delays or prohibits the making of payments outside the United States); and the Debentures have been duly authorized and executed by the Guarantor and, when authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Trust pursuant to the Debenture Purchase Agreement, the Debentures will constitute valid and legally binding obligations of the Guarantor enforceable against the Guarantor in accordance with their terms and entitled to the benefits of the Indenture subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and subject to general equity principles and except further as enforcement thereof may be limited by any governmental authority that limits, delays or prohibits the making of payments outside the United States;
(ix) the Guarantee Agreement has been duly authorized, executed and delivered by the Guarantor, and (assuming the Guarantee Agreement has been duly authorized, executed and delivered by the Guarantee Trustee) constitutes a valid and legally binding instrument enforceable against the Guarantor in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and subject to general equity principles and except further as enforcement thereof may be limited by any governmental authority that limits, delays or prohibits the making of payments outside the United States); and the Trust Agreement has been duly authorized, executed and delivered by the Guarantor and each of the Administrative Trustees;
(x) the Registration Statement has and any amendments thereto have become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement Statement, as amended, has been issued, issued and no proceedings for that purpose have been instituted or threatened and threatened; the Registration Statement Statement, the Final Prospectus and the Prospectus each amendment thereof or supplement thereto as of their respective effective or issue dates (other than the financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Guarantor or the Trust by or on behalf of an Underwriter through the Representative (it being understood and agreed that the only such information furnished by any Underwriter consists of such information described as such in the Blood Letter) and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, as to which such counsel need express no opinion) comply complied as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date Registration Statement, or any amendment thereof, at the time it became effective (other than the financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Guarantor or the date Trust by or on behalf of an Underwriter through the Registration Statement was last deemed amendedRepresentative (it being understood and agreed that the only such information furnished by any Underwriter consists of such information described as such in the Blood Letter) and other than the Statements of Eligibility on Form T-1 included or incorporated by reference therein, the Registration Statement as to which such counsel need express no opinion), contained any 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 Prospectus Final Prospectus, as amended or supplemented (other than the financial statements and other financial and statistical information contained therein, other than statements furnished in writing to the Guarantor or the Trust by or on behalf of its date an Underwriter through the Representative (it being understood and agreed that the only such information furnished by any Underwriter consists of such information described as such in the Blood Letter) and other than the Statements of Eligibility on the Closing Date Form T-1 included or incorporated by reference therein, as to which such counsel need express no opinion), includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion)misleading;
(vixi) this Agreement has been duly authorized, executed and delivered by each of the Company;Trust and the Guarantor; and
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viiixii) no consent, approval, authorization, filing with authorization or order of any court or governmental government agency or body is required in connection with for the consummation of the transactions contemplated hereinherein or in the Indenture, the Debentures, the Trust Agreement or the Guarantee Agreement, except such as have been obtained under the Act and the Trust Indenture Act and such as may be required under the blue sky Blue Sky laws of any jurisdiction or NASD regulations in connection with the purchase and distribution of the Capital Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the ActUnderwriters. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas Minnesota and the State of Delaware General Corporation Law or the Federal laws of the United States, to the extent they deem deemed proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters Underwriters; and (B) as to matters of fact, to the extent they deem deemed proper, on certificates of responsible officers of the Company Trust and the Guarantor and its subsidiaries and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives Representative shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.the opinion of counsel to Bank One Trust Company, counsel for N.A., as Property Trustee under the UnderwritersTrust Agreement, such opinion or opinions, dated Debenture Trustee under the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably requireIndenture, and Guarantee Trustee under the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the CompanyGuarantee Agreement, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement Bank One Trust Company, N.A. is duly incorporated and is validly existing in good standing as a banking corporation under the law of the State of Delaware.
(ii) Bank One Trust Company, N.A. has the power and authority to execute, deliver and perform its obligations under the Trust Agreement, the Indenture and the Custody Guarantee Agreement.
(iii) Each of the Trust Agreement, the Indenture and the Guarantee Agreement and Power of Attorney have has been duly authorized, executed and delivered by the Selling StockholderBank One Trust Company, the Custody Agreement is N.A. and constitutes a legal, valid and binding on the Selling Stockholderobligation of Bank One Trust Company, and the Selling Stockholder has full legal right and authority to sellN.A., transfer and deliver enforceable against Bank One Trust Company, N.A. in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires accordance with its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; andterms.
(iv) neither the sale The execution, delivery and performance by Bank One Trust Company, N.A. of the Securities being sold by Trust Agreement, the Selling Stockholder nor Indenture and the consummation of any other Guarantee Agreement do not conflict with or constitute a breach of the transactions herein contemplated by the Selling Stockholder charter or the fulfillment by-laws of the terms hereof by the Selling Stockholder will conflict withBank One Trust Company, result in a breach N.A.
(v) No consent, approval or violation authorization of, or constitute a default under registration with or notice to, any law governmental authority or the charter or By-laws agency of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal United States of America governing the banking or trust powers of Bank One Trust Company, N.A. is required for the execution, delivery or performance by Bank One Trust Company, N.A. of the Trust Agreement, the Indenture and the Guarantee Agreement.
(d) The Representative shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, as special Delaware counsel to the Trust and the Guarantor, dated the 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 Delaware Statutory Trust Act (the “Delaware Act”), and all filings required as of the date hereof under the Delaware Act with respect to the creation and valid existence of the Trust as a business trust have been made.
(ii) Under the Trust Agreement and the Delaware Act, the Trust has the trust power and authority to own property and to conduct its business, all as described in the Final Prospectus.
(iii) The Trust Agreement constitutes a valid and legally binding instrument enforceable against the Guarantor and each of the Administrative Trustees in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and subject to general equity principles and except further as enforcement thereof may be limited by any governmental authority that limits, delays or prohibits the making of payments outside the United States).
(iv) Under the Trust Agreement and the Delaware Act, the Trust has the trust power and authority (i) to execute and deliver, and to perform its obligations under, this Agreement, and (ii) to issue, and to perform its obligations under, the Capital Securities and the Trust Common Securities.
(v) Under the Trust Agreement and the Delaware Act, the execution and delivery by the Trust of this Agreement, and the performance by the Trust of its obligations under this Agreement, have been duly authorized by all necessary trust action on the part of the Trust.
(vi) Under the Delaware Act, the certificate attached to the extent they deem proper and specified in such opinion, upon Trust Agreement as Exhibit C is an appropriate form of certificate to evidence ownership of the opinion of other counsel of good standing whom they believe to be reliablCapital Securities.
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 Subsidiary Guarantors and the Selling Stockholder Parent 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 Company, the Subsidiary Guarantors and the Selling Stockholder Parent made in any certificates pursuant to the provisions hereof, to the performance by the Company Company, the Subsidiary Guarantors and the Selling Stockholder Parent of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPDechert, counsel for the CompanyCompany and the Subsidiary Guarantors, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the CompanyCompany and the Subsidiary Guarantors, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedincorporated, with full corporate power and corporate authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and and, in the case of the Company, is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualificationthe Commonwealth of Pennsylvania;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all the outstanding shares of capital stock of ATX Technologies Constar, Inc. and ATX Europe are Constar Foreign Holdings, Inc. owned by the Company are owned either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance; and to the knowledge of such counsel, based solely upon a report as to UCC financing statements on file against the Company, Constar Foreign Holdings, Inc., Crown Cork & Seal Company, Inc., Crown UK Holdings Ltd. and Crown Cork Netherlands Holding BV with the Secretary of State of the State of New York, the Secretary of State of the Commonwealth of Pennsylvania and the Secretary of State of the State of Delaware, there is no security interest, claim, lien or encumbrance with respect to the outstanding shares of capital stock of Constar International Holland (Plastics) BV and Constar International UK Ltd.;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Prospectus; Prospectus and the capital stock of the Company conforms Securities conform in all material respects to the description thereof contained in the Prospectus;
(iv) the Indenture has been duly authorized, executed and delivered by the Company and the Subsidiary Guarantors, has been duly qualified under the Trust Indenture Act, and, assuming due authentication, execution and delivery by the Trustee, constitutes a legal, valid and binding instrument enforceable against the Company and the Subsidiary Guarantors in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law); and the outstanding shares of Common Stock Securities have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listedconstitute legal, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock binding obligations of the Company are not and the Subsidiary Guarantors entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in benefits of the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstandingIndenture;
(ivv) the Subsidiary Guarantees have been duly authorized and, when the Securities have been duly executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of each Subsidiary Guarantor, enforceable in accordance with their terms (subject, as to enforcement and remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect, and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law) and entitled to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any benefits of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and Indenture;
(vi) the statements included in the Prospectus under the headings “Description of Capital Stockheading "Material United States Federal Tax Consequences,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case " insofar as such statements summarize constitute a summary of the legal matters, agreements, matters or documents or proceedings discussed referred to therein, are accurate and fair summaries of fairly present the information called for with respect to such legal matters, agreements, documents matters or proceedingsdocuments;
(vvii) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion)threatened;
(viviii) this Agreement has been duly authorized, executed and delivered by the CompanyCompany and the Subsidiary Guarantors;
(viiix) the Company is not and, after giving effect to the offering and sale of the Securities (including the concurrent Common Stock Offering and the Company's concurrent receipt of term loans as described in the Prospectus) and the application of the proceeds thereof as described in the Prospectus, will not be, be an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viiix) no consent, approval, authorization, filing with or order of any Pennsylvania, New York, Delaware or U.S. Federal court or governmental agency or body is required in connection with for the consummation by the Company and the Subsidiary Guarantors of the transactions contemplated herein, except (1) such as have been obtained under the Act and Act, (2) such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities or the Subsidiary Guarantees by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and Prospectus, as to which such counsel need express no opinion, (3) such other approvals (specified in such opinion) as have been obtainedobtained and (4) except where the failure to obtain such consent, approval, authorization, filing or order would not have a material adverse effect on the issuance and sale of the Securities or the Subsidiary Guarantees or the consummation of any of the other transactions contemplated herein;
(ixxi) neither the execution and delivery of the Indenture, nor the issue and sale of the Securities, nor the consummation of any other of the transactions contemplated herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will (1) conflict with, with or result in a breach or violation of the charter or by-laws of the Company or the Subsidiary Guarantors, (2) result in a material breach or violation of, or the imposition of any material lien, charge or encumbrance upon any property or assets of the Company Company, its Subsidiaries or the Subsidiaries Subsidiary Guarantors pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (ii) to the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument that is material to the Company and its subsidiaries, taken as a whole, and that is known to such counsel after due inquiry to which the Company Company, its Subsidiaries or the Subsidiaries Subsidiary Guarantors is a party or bound or to which its or their property is subject, or (iii3) conflict with or violate in any material respect any Delaware corporate, Pennsylvania, New York or U.S. Federal statute, law, rulerule or regulation applicable to the Company, regulationits Subsidiaries or the Subsidiary Guarantors, or any judgment, order or decree known to such counsel after due inquiry to be applicable to the Company Company, its Subsidiaries or the Subsidiaries Subsidiary Guarantors of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company Company, its Subsidiaries or the Subsidiaries Subsidiary Guarantors or any of its or their properties;properties (other than U.S. Federal or state securities or blue sky laws, other anti-fraud laws and fraudulent transfer laws and bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights, as to which such counsel need not express any opinion); and
(xxii) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) . In rendering such opinion, such counsel may state that their opinion is limited to matters governed by the Merger complied with applicable law and did not require Federal laws of the consent or approval United States of any third party that was not obtained;
(xii) in connection with the MergerAmerica, the Company properly (A) exchanged all law of the outstanding shares Commonwealth of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the CompanyPennsylvania, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws law of the State of Texas New York and the General Corporation Law of the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the ActDelaware. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State Commonwealth of Texas and Pennsylvania, the State of Delaware Delaware, the State of New York or the Federal laws of the United StatesStates and as to matters involving the application of laws relating to intellectual property, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on written statements or certificates of responsible officers of the Company Company, the Subsidiary Guarantors and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date. Such counsel shall also have furnished to the Underwriters a written statement, addressed to the Underwriters and dated the Closing Date (or the applicable settlement date) to the effect that (i) the Registration Statement and the Prospectus (other than the financial statements (including pro forma financial statements and notes to financial statements or pro forma financial statements) and related schedules and other financial, accounting or statistical information included in or excluded from the Registration Statement or the Prospectus, as to which such counsel need express no belief) appear on their face to be appropriately responsive in all material respects to the requirements of the Act and the Trust Indenture Act and the respective rules and regulations thereunder and (ii) such counsel participated in conferences with officers and representatives of the Company, representatives of the Subsidiary Guarantors, PricewaterhouseCoopers LLP, the Underwriters, the Parent and Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ in connection with the preparation of the Registration Statement, and based on the foregoing and without assuming responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement except as provided in clause 6(b)(vi) above or making any independent check or verification thereof (and relying as to factual matters upon the statements of officers and other representatives of the Company, the Subsidiary Guarantors, the Parent and others), no facts have come to the attention of such counsel which lead them to believe that (I) the Registration Statement, as of the Effective Date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading or (II) the Prospectus, as of its date and as of the Closing Date (and any applicable settlement date), contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that such counsel need not express a belief as to any financial statements (including pro forma financial statements and notes to financial statements or pro forma financial statements) and related schedules, and other financial, accounting or statistical information included in or excluded from the Registration Statement or the Prospectus.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder Parent shall have requested and caused Dechert, counsel for the Selling StockholderParent, to have furnished to the Representatives their opinion, opinion dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have has been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderParent;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any Pennsylvania or U.S. Federal court or governmental agency or body is required for the consummation by the Selling Stockholder Parent of the transactions contemplated herein, except (1) such as may have been obtained under the Act and Act, (2) such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus, as to which such counsel need express no opinion, (3) such other approvals (specified in such opinion) as have been obtainedobtained and (4) where the failure to obtain such consent, approval, authorization, or order would not have a material adverse effect on the issuance and sale of the Securities or the consummation of any of the other transactions contemplated herein; and
(iviii) neither the issue or sale of the Securities being sold by the Selling Stockholder hereunder nor the consummation of any other of the transactions contemplated herein contemplated by the Selling Stockholder or Parent nor the fulfillment of the terms hereof by the Selling Stockholder Parent will (1) conflict with, with or result in a breach or violation of, or constitute a default under any law or of the charter or Byby-laws of the Selling Stockholder Parent, (2) result in a material breach or violation of, or the imposition of any material lien, charge or encumbrance upon any property or assets of the Parent pursuant to the terms of any indenture material indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement agreement, obligation, condition, covenant or instrument known to such counsel and after due inquiry to which the Selling Stockholder or any of its subsidiaries Parent is a party or boundbound or to which its property is subject, or (3) conflict with or violate in any material respect any Pennsylvania, New York or U.S. Federal statute, law, rule or regulation applicable to the Parent, or any judgment, order or decree known to such counsel after due inquiry to be applicable to the Selling Stockholder or any of its subsidiaries Parent of any court, regulatory body, administrative agency, governmental body body, or arbitrator or other authority having jurisdiction over the Selling Stockholder Parent or any of its subsidiariesproperties (other than U.S. Federal or state securities or blue sky laws, other anti-fraud laws and fraudulent transfer laws and bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights, as to which such counsel need not express any opinion). In rendering such opinion, such counsel may rely (A) as state that their opinion is limited to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or governed by the Federal laws law of the United StatesStates of America, to the extent they deem proper law of the Commonwealth of Pennsylvania and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablt
Appears in 1 contract
Sources: Underwriting Agreement (Constar Inc)
Conditions to the Obligations of the Underwriters. The -------------------------------------------------- obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Issuers 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 and the Selling Stockholder Issuers made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Issuers of its their obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused furnished to the Representatives the opinion of each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President and Associate General Counsel of the Company and ▇▇▇▇▇▇ & Bird LLP, counsel for the Company, to have furnished to the Representatives their opinion, each dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies Company and ATX Europe GmbH (“ATX Europe”) the Guarantors has been duly incorporated organized or incorporated, as the case may be, and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms Securities conform in all material respects to the description thereof contained in the Prospectus;
(iv) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Issuers in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect); and the outstanding shares of Common Stock Notes have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listedconstitute legal, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock binding obligations of the Company are not Issuers entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in benefits of the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstandingIndenture;
(ivv) the Guarantees have been duly authorized and, when executed and delivered in accordance with the provisions of the Indenture will be entitled to the benefits of the Indenture and will be valid and binding obligations of each of the Guarantors;
(vi) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the ProspectusRegistration Statement, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(vvii) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date or at the date Execution Time the Registration Statement was last deemed amended, the Registration Statement contains or contained any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need not express no any opinion);
(viviii) this Agreement has been duly authorized, executed and delivered by the CompanyIssuers;
(viiix) None of the Company Issuers is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, be an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viiix) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;Prospectus; and
(ixxi) neither the execution and delivery of the Indenture, the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the its Subsidiaries pursuant to, (i) the charter or by-laws Organizational Documents of the Company or its Subsidiaries, (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 or the Subsidiaries its subsidiaries is a party or bound or to which its or their property is subject, which is material to the Company and its Subsidiaries, taken as a whole or (iii) to the knowledge of such counsel, any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries its subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinionopinions, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas Delaware and the State laws of Delaware the States of Georgia, Alabama, Illinois and Indiana or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date. The opinion or opinions of such counsel shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(c) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P.& ▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. The opinion of such counsel shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company Issuers 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 Issuers 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 Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledgeknowledge of the Issuers, threatened; and
(iii) since the date of the most recent financial statements included in the Prospectus (exclusive of any supplement thereto)Prospectus, there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiariessubsidiaries, 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 Prospectus (exclusive of any supplement thereto)Prospectus.
(e) The Selling Stockholder At the Execution Time and at the Closing Date, PricewaterhouseCoopers LLP shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinionletters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives, to confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and that they have performed a review of the unaudited interim financial information of the Company for the six-month period ended August 1, 1998, in accordance with Statement on Auditing Standards No. 71, stating in effect that:
(i) this Agreement in their opinion the audited financial statements and financial statement schedules and pro forma financial statements included or incorporated in the Registration Statement and the Custody Agreement Prospectus and Power reported on by them comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, Act and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement Exchange Act and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderrelated published rules and regulations;
(ii) assuming that each Underwriter acquires its interest in on the Securities it has purchased from the Selling Stockholder without notice basis of any adverse claim (within the meaning of Section 8-105 a reading of the UCC)latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, each Underwriter that has purchased such Securities delivered in accordance with standards established under Statement on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided hereinAuditing Standards No. 71, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCCunaudited interim financial information for the six-month period ended August 1, 1998, carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning which would not necessarily reveal matters of Section 8-105 of the UCC) may be asserted against such Underwriter significance with respect to the comments set forth in such Securitiesletter; a reading of the minutes of the meetings of the stockholders and directors of the Company and the Subsidiaries and the Audit Committee and Executive Committee of the Company; and inquiries of certain officials of the Issuers who have responsibility for financial and accounting matters of the Issuers and its subsidiaries as to transactions and events subsequent to August 1, 1998, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated 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 published rules and regulations of the Commission with respect to financial statements included or incorporated in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated in the Registration Statement and the Prospectus;
(2) with respect to the period subsequent to August 1, 1998, 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 or decreases in the stockholders' equity or consolidated net assets of the Company as compared with the amounts shown on the August 1, 1998 consolidated balance sheet included or incorporated in the Registration Statement and the Prospectus, or for the period from August 2, 1998 to such specified date there were any decreases, as compared with the corresponding period in the preceding year; in net revenues or income before income taxes or in total or per share amounts of net income of the Company and its subsidiaries or in operating income or income before provision for income taxes and extraordinary items or income before extraordinary items, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives;
(3) the information included in the Registration Statement and Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K; and
(iii) no consentthey have performed certain other specified procedures as a result of which they determined that certain information of an accounting, approvalfinancial or statistical nature (which is limited to accounting, authorization financial or order of any court or governmental agency or body is required for statistical information derived from the consummation by the Selling Stockholder general accounting records of the transactions contemplated hereinCompany and its subsidiaries) set forth in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement, except such as may have been obtained including the information set forth under the Act captions "Summary Financial and such as may be required under Operating Data," "Risk Factors," "The Company," and "Capitalization" in the blue sky laws Prospectus, the information included or incorporated in Items 1, 6 and 7 of any jurisdiction the Company's Annual Report on Form 10-K, incorporated in connection the Registration Statement and the Prospectus, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated in the Company's Quarterly Reports on Form 10-Q, incorporated in the Registration Statement and the Prospectus, information included in the Company's Current Reports on Form 8-K incorporated in the Registration Statement and the Prospectus agrees with the purchase and distribution accounting records of the Securities by Company and its subsidiaries, excluding any questions of legal interpretation. References to the Underwriters and such other approvals Prospectus in this paragraph (specified in such opinione) as have been obtained; and
(iv) neither include any supplement thereto at the sale date of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablletter.
Appears in 1 contract
Sources: Underwriting Agreement (Saks Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder 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 Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused H▇▇▇▇ & H▇▇▇▇▇▇ ▇▇▇▇▇ LLPL.L.P., counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and any settlement date and addressed to the Representatives, to the effect that:set forth in Annex B hereto.
(ic) each of The Company shall have requested and caused Hatasawa, Wakai & Yasunaga, counsel for Advanced Energy Japan, K.K., to have furnished to the Representatives their opinion, dated the Closing Date and any settlement date and addressed to the Representatives, to the effect set forth in Annex C hereto.
(d) The Company shall have requested and caused J. ▇. ▇▇▇▇▇▇, internal counsel for the Company, ATX Technologies to have furnished to the Representatives his opinion, dated the Closing Date and ATX Europe GmbH (“ATX Europe”) has been duly incorporated any settlement date and is validly existing as a corporation in good standing under addressed to the laws of Representatives, to the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise effect set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;Annex D hereto.
(iiie) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock The Representatives shall have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by received from D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(df) The Company shall have furnished to the Representatives a certificate of the Company, signed by the 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, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus 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 and any settlement date with the same effect as if made on the Closing Date and any settlement date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateDate and any settlement date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiariessubsidiaries, 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 Final Prospectus (exclusive of any supplement thereto).
(eg) The Selling Stockholder Company shall have requested and caused , counsel for the Selling Stockholder, G▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP to have furnished to the Representatives their opinionRepresentatives, dated at the Execution Time and at the Closing Date and addressed any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date and any settlement date, in form and substance satisfactory to the Representatives, to the effect that:set forth in Annex E hereto.
(h) The Company shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date and any settlement date, in form and substance satisfactory to the Representatives, to the effect set forth in Annex F hereto.
(i) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the 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 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 amendment thereof) and the Final Prospectus (exclusive of any supplement thereto).
(j) Prior to the Closing Date and any settlement date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(l) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq National Market, 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 addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Custody Agreement and Power Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of Attorney have been duly authorized, executed and 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 Selling Stockholderoffice of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Custody Agreement is valid and binding on the Selling StockholderUnderwriters, and the Selling Stockholder has full legal right and authority to sellat 1▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC)▇▇▇▇▇ ▇▇▇▇, each Underwriter that has purchased such Securities delivered ▇▇ ▇▇▇▇▇, on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablDate.
Appears in 1 contract
Sources: Underwriting Agreement (Advanced Energy Industries Inc)
Conditions to the Obligations of the Underwriters. The -------------------------------------------------- obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder 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 and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused furnished to the Representatives the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, A Professional Corporation, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the RepresentativesDate, to the effect that:
(i) each of the Company, ATX Technologies Vintage Marketing, Inc., Vintage Pipeline, Inc., Vintage Gas, Inc., Vintage Petroleum International, Inc., Vintage Petroleum Ecuador, Inc., Vintage Petroleum Argentina, Inc., Cadipsa S.A. and ATX Europe GmbH Vintage Oil Argentina, Inc. (“ATX Europe”individually a "Subsidiary" and collectively the "Subsidiaries") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualificationqualification wherein it owns or leases material properties or conducts material business;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interestinterests, claimclaims, lien liens or encumbranceencumbrances;
(iii) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms Securities conform in all material respects to the description thereof contained in the Prospectus;
(iv) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors' rights generally from time to time in effect); the outstanding shares enforceability of Common Stock the obligations of the Company is also subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Securities have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid entitled to the benefits of the Indenture and nonassessablewill constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors' rights generally from time to time in effect); the Securities being sold hereunder by enforceability of the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock obligations of the Company are not entitled is also subject to preemptive general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;at law).
(ivv) to the knowledge of such counsel, (1) there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property subsidiaries of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and (2) there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “"Business--Legal Proceedings", "Description of Capital Stock,” “Certain Relationships Indebtedness" and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements "Description of Notes" fairly summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedingsthe matters therein described;
(vvi) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; and although such counsel has is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, except as otherwise specifically dealt with in their opinion, and relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company, no reason facts have come to the attention of such counsel that have caused such counsel to believe that on at the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on or the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vivii) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with authorization or order of any court or governmental agency or body is required in connection with for the consummation of the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the execution and delivery of the Indenture, the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, or imposition of constitute a default under any lien, charge law or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan indenture or other agreement or other agreement, obligation, condition, covenant or instrument known to such counsel and to which the Company or the Subsidiaries any of its subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree known to such counsel to be applicable to the Company or the Subsidiaries any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, body or arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;subsidiaries; and
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and Oklahoma, the General Corporation Law of the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Cravath, Swaine & ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, 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 Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board, the Vice Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement that are qualified as to materiality are true and correct, and such representations and warranties that are not so qualified 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 in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s 's knowledge, threatenedthreatened by appropriate governmental authorities; and
(iii) since the date of the most recent financial statements included in the Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on change in the condition (financial or otherwiseother), prospects, earnings, business or properties of the Company and its Subsidiaries, taken subsidiaries considered as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder At the Execution Time and at the Closing Date, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opiniona letter or letters, dated respectively as of the Execution Time and as of the Closing Date (which may be in the form of a "bring down" letter), in form and addressed substance satisfactory to the Representatives, to confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and that they have performed a review of the unaudited interim financial information of the Company for the nine-month period ended September 30, 1996 and the nine-month period ended September 30, 1995 in accordance with Statement of Auditing Standards No. 71 and stating in effect that:
(i) this Agreement in their opinion the audited financial statements and financial statement schedules and pro forma financial statements included or incorporated in the Registration Statement and the Custody Agreement Prospectus and Power reported on by them comply in form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, Act and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement Ex change Act and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderrelated published rules and regulations;
(ii) assuming that each Underwriter acquires its interest in on the Securities it has purchased from the Selling Stockholder without notice basis of any adverse claim (within the meaning of Section 8-105 a reading of the UCC), each Underwriter that has purchased such Securities delivered on latest unaudited financial statements made available by the Closing Date to The Depository Trust Company or other securities intermediary and its subsidiaries; their limited review in accordance with standards established by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts American Institute of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning Certified Public Accountants under Statement of Section 8-102(a)(17) Auditing Standards No. 71 of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 unaudited interim financial information of the UCCCompany for the nine-month period ended September 30, 1996 and the nine-month period ended September 30, 1995, carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) may be asserted against such Underwriter which would not necessarily reveal matters of significance with respect to the comments set forth in such Securitiesletter; a reading of the minutes of the meetings of the stockholders, directors and the compensation and audit 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, 1995, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated in the Registration Statement and the Prospectus do not comply in form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect to financial statements included or incorporated in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated in the Registration Statement and the Prospectus; or
(2) with respect to the period subsequent to September 30, 1996, there were any changes, at a specified date not more than five business 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 or decreases in the stockholders' equity of the Company as compared with the amounts shown on the September 30, 1996, consolidated balance sheet included or incorporated in the Registration Statement and the Prospectus, or for the period from October 1, 1996 to such specified date there were any decreases, as compared with the corresponding period in the preceding year or the corresponding portion of the preceding fiscal quarter in net revenues or income before income taxes or in total or per share amounts of net income 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 Representatives;
(3) the information included in the Registration Statement and Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-X;
(iii) no consentthey have performed certain other specified procedures as a result of which they determined that certain information of an accounting, approvalfinancial or statistical nature (which is limited to accounting, authorization financial or order of any court or governmental agency or body is required for statistical information derived from the consummation by the Selling Stockholder general accounting records of the transactions contemplated herein, except such as may have been obtained under Company and its subsidiaries) set forth in the Act Registration Statement and such as may be required under the blue sky laws of any jurisdiction Prospectus and in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable Exhibit 12 to the Selling Stockholder or any of its subsidiaries of any courtRegistration Statement, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablincluding t
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 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 their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies Company and ATX Europe GmbH Marine Midland Bank (“ATX Europe”the "Subsidiary") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualificationqualification and the Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe the Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe the Subsidiary are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Final Prospectus; the capital stock of the Company conforms Securities conform in all material respects to the description thereof contained in the Final Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; [the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, listed and admitted and authorized for trading, trading subject to official notice of issuance [and evidence of satisfactory distribution, ] on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; Stock Exchange], and, except as set forth in the Final Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) [the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect); and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture;]
(v) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries its subsidiaries or its or their property property, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, 7 7 contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included or incorporated by reference in the Final Prospectus under describing any legal proceedings relating to the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as Company fairly summarize such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(vvi) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 threatened, and the Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act[, ] [and] the Exchange Act [and the Trust Indenture Act] and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date or at the date the Registration Statement was last deemed amended, Execution Time the Registration Statement contained any 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 on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vivii) this Agreement has been duly authorized, executed and delivered by the Company;
(viiviii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Prospectus, will not be, be an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viiiix) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Final Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ixx) neither [the execution and delivery of the Indenture,] the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablthe
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The ------------------------------------------------- obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇and ▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies Company and ATX Europe GmbH (“ATX Europe”) its Significant Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as such properties and business are described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualificationlisted on Schedule I attached hereto;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe each of its Significant Subsidiaries have been duly authorized and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe each of its Significant Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the ProspectusProspectus under the caption "Description of Capital Stock"; the outstanding shares of Common Stock have been duly authorized and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be duly authorized, validly issued, fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National MarketNew York Stock Exchange; the certificates for the Securities are in valid and sufficient formform under the Delaware General Corporation Law statute and under the charter and by-laws of the Company and under all applicable requirements of the New York Stock Exchange; the holders of outstanding shares of capital stock of the Company are not entitled to statutory preemptive or or, to such counsel's knowledge, other similar contractual rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and and, to the knowledge of such counsel, there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements statements, including the notes and schedules thereto and any other financial and statistical information contained thereinderived therefrom, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries its subsidiaries pursuant to, to (i) the charter or by-laws of the Company or its Subsidiariessubsidiaries or (ii) (except for the Company's indemnification, contribution and reimbursement obligations hereunder, as to which such counsel need express no opinion) any United States federal or Virginia state statute, law, rule or regulation or, to the knowledge of such counsel, any judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its subsidiaries or any of its or their properties; and
(x) to the knowledge of such counsel, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement. In addition, such counsel shall state that, in connection with the preparation of the Registration Statement and the Prospectus, they have participated in conferences with officers and representatives of the Company, counsel for the Underwriters and the independent accountants of the Company, at which conferences they made inquiries of such persons and others and discussed the contents of the Registration Statement and the Prospectus, and that, while the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process are such that they 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 Prospectus, subject to the foregoing and based on such participation, inquiries and discussions, no facts have come to their attention which have caused them to believe that the Registration Statement, as of the Effective Date (but after giving effect to changes incorporated pursuant to Rule 430A under the Act), 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 (except that they express no such view with respect to the financial statements, including the notes and schedules thereto, or any other financial information derived therefrom), that the Prospectus, as of the date it was filed with the Commission pursuant to Rule 424(b)(4) under the Act, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (except that they express no such view with respect to the financial statements, including the notes and schedules thereto, or any other financial information derived therefrom), or that the Registration Statement or the Prospectus, as of the date of such opinion, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (except that they express no such view with respect to the financial statements, including the notes and schedules thereto, or any other financial information derived therefrom). In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇ ▇▇▇▇▇▇▇, Vice President and General Counsel for the Company, her opinion, dated the Closing Date and addressed to the Representatives, to the effect that neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries pursuant to, (iii) 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 or the Subsidiaries its subsidiaries is a party or bound or to which its or their property is subject, subject or (iiiii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries its subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(cd) The Representatives shall have received from ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiariessubsidiaries, 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 Prospectus (exclusive of any supplement thereto).
(ef) The Selling Stockholder Company shall have requested and caused , counsel for the Selling Stockholder, Deloitte & Touche L.L.P. to have furnished to the Representatives their opinionletters, at the Execution Time and at the Closing Date, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives, to confirming that they are independent accountants within the meaning of the Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for each of the three-month periods in fiscal year 2000, fiscal year 2001 and the nine months ended March 31, 2002 and for the nine-month period ended March 31, 2001 in accordance with Statement on Auditing Standards No. 71, and stating in effect that:
(i) this Agreement in their opinion the audited financial statements and financial statement schedules and pro forma financial statements included in the Registration Statement and the Custody Agreement Prospectus and Power reported on by them comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed the Act and delivered the related rules and regulations adopted by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderCommission;
(ii) assuming that each Underwriter acquires its interest in on the Securities it has purchased from the Selling Stockholder without notice basis of any adverse claim (within the meaning of Section 8-105 a reading of the UCC)latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, each Underwriter that has purchased such Securities delivered in accordance with standards established under Statement on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided hereinAuditing Standards No. 71, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 unaudited interim financial information for each of the UCCthree-month periods in fiscal year 2000, fiscal year 2001 and the nine months ended March 31, 2002 and for the nine-month period ended March 31, 2001, carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) may be asserted against such Underwriter which would not necessarily reveal matters of significance with respect to the comments set forth in such Securities;letter; a reading of the minutes of the meetings of the stockholders, directors and audit and compensation committees of the Company and the Significant 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 March 31, 2001, nothing came to their attention which caused them to believe that:
(iii1) no consent, approval, authorization or order of any court or governmental agency or body is required for unaudited financial statements included in the consummation by Registration Statement and the Selling Stockholder Prospectus do not comply as to form in all material respects with applicable accounting requirements of the transactions contemplated herein, except such as may have been obtained under the Act Act; and such as may be required under the blue sky laws of any jurisdiction said unaudited financial statements are not in connection conformity with the purchase and distribution generally accepted accounting principles applied on a basis substantially consistent with that of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablaudited f
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder 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 Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 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 their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company and The Heartland Payroll Company, ATX Technologies and ATX Europe GmbH LLC (the “ATX EuropeSubsidiary”) has been duly incorporated organized and is validly existing as a corporation or company, as applicable, in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe limited liability company interests in The Heartland Payroll Company L.L.C. have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe limited liability company interests in The Heartland Payroll Company L.L.C. are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;.
(iii) the Company’s authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock (including the Securities being sold hereunder by the Selling Stockholders) have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are have been duly listed, and admitted and authorized for tradinglisting on the New York Stock Exchange, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Marketissuance; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities, other than any such rights as have been satisfied or waived; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries its subsidiary or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, amended the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) except in the case of Greenhill, the Custody Agreement and Power of Attorney has been duly authorized, executed and delivered by the Selling Stockholders, the Custody Agreement and Power of Attorney is valid and binding on the Selling Stockholders and each Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(viii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viiiix) no consent, approval, authorization, filing with or order of any court or court, governmental agency or body or regulatory authority is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ixx) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries its subsidiary pursuant to, (i) the charter or by-laws of the Company or its Subsidiariessubsidiary, (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 or the Subsidiaries its subsidiary is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries its subsidiary of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries its subsidiary or any of its or their properties;; and
(xxi) except Except as set forth in or contemplated described in the Prospectus (exclusive of any supplement thereto)Prospectus, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and New York, the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) ▇▇▇▇▇▇▇▇▇ Capital Partners L.P., Greenhill Capital, L.P., ▇▇▇▇▇▇▇▇▇ Capital Partners (Executives), L.P. and ▇▇▇▇▇▇▇▇▇ Capital Partners (Cayman), L.P. (collectively, “Greenhill”), as Selling Stockholders, shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for Greenhill[, and the Selling Stockholders (other than Greenhill) shall have requested and caused counsel for such Selling Stockholders,] to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement has been duly authorized, executed and delivered by the Selling Stockholders, and each Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) upon payment for the Securities to be sold by the Selling Stockholders pursuant to this Agreement, delivery of such Securities, as directed by the Underwriters, to Cede & Co. or such other nominee as may be designated by DTC, registration of such Securities in the name of Cede & Co. or such other nominee and the crediting of such Securities on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim within the meaning of Section 8-105 of the UCC to such Securities), (A) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Securities and (B) no action based on any “adverse claim” (within the meaning of Section 8-102 of the UCC) to such Securities may be asserted against the Underwriters with respect to such security entitlement; in giving this opinion, such counsel may assume that when such payment, delivery and crediting occur, (x) such Securities will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC;
(iii) no consent, approval, authorization or order of any court, governmental agency or body under United States federal or New York state law that in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the type contemplated by this Agreement is required for the consummation by any Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the Exchange Act, the blue sky laws of any jurisdiction and under any regulations of the NASD in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by any Selling Stockholder nor the consummation of any other of the transactions herein contemplated by any Selling Stockholder, if applicable, or the fulfillment of the terms hereof by any Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any United States federal or New York state law that in such counsel’s experience is normally applicable to general business corporations in relation to transactions of the type contemplated by this Agreement or the charter or By-laws of the Selling Stockholder, if applicable, or the terms of any indenture or other agreement or instrument known to such counsel and to which any Selling Stockholder or any of its subsidiaries, if applicable, is a party or bound, or any judgment, order or decree known to such counsel to be applicable to any Selling Stockholder or any of its subsidiaries, if applicable, of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over any Selling Stockholder or any of its subsidiaries, if applicable, in each case except for such conflicts, breaches, violations or defaults that would not have a material adverse effect on the consummation of the transactions contemplated by the underwriting agreement. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York, State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible [officers/Managing Directors] of the Selling Stockholders and public officials.
(d) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P.& ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablRegist
Appears in 1 contract
Sources: Underwriting Agreement (Heartland Payment Systems Inc)
Conditions to the Obligations of the Underwriters. The several 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 the part of the Company and the Selling Stockholder 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 Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company Westpac Parties and the Selling Stockholder Issuer Trustee of its their obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not shall have become effective, or if a post-effective prior amendment is required to be filed under the Execution TimeSecurities Act, unless the Representatives agree in writing to a later timesuch post-effective amendment shall have become effective, the Registration Statement will become effective not later than (i) 6:00 PM 5:00 P.M., New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b)hereof; and no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment shall have been issued be in effect, and no proceedings for that such purpose shall be pending before or threatened by the Commission; the Prospectus shall have been instituted or threatened.filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; and all requests for additional information shall have been complied with to the satisfaction of the Representatives;
(b) The Company the representations and warranties of the Westpac Parties and the Issuer Trustee contained herein are true and correct on and as of the Closing Date as if made on and as of the Closing Date and the representations and warranties of the Westpac Parties in the Basic Documents will be true and correct on the Closing Date; and each Westpac Party and the Issuer Trustee shall have requested complied with all agreements and caused all conditions on its part to be performed or satisfied hereunder and under the Basic Documents at or prior to the Closing Date;
(c) subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate an improvement, in the rating accorded any securities of or guaranteed by each Westpac Party by any "nationally recognized statistical rating organization", as such term is defined for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in the Prospectus there shall not have been any material adverse change or any development involving a prospective material adverse change, in or affecting the general affairs, business, prospects, management, financial position, stockholders' equity or results of operations of each Westpac Party, taken as a whole, otherwise than as set forth or contemplated in the Prospectus, the effect of which in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the Closing Date on the terms and in the manner contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the Closing Date a certificate of an executive officer of each Westpac Party, with specific knowledge about financial matters of such Westpac Party, satisfactory to the Representatives to the effect set forth in subsections [(a) through (d)] of this Section;
(f) ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇, Australian counsel for Westpac, the Trust Manager and the Servicer, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance satisfactory to the Representatives, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(g) ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇, Australian tax counsel for Westpac, the Trust Manager and the Servicer, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance satisfactory to the Representatives, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(h) on the date hereof and also on the Closing Date, Coopers & ▇▇▇▇▇▇▇ L.L.P. shall have furnished to you letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) the Representatives shall have received on and as of the Closing Date an opinion of ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and other related matters as the Representatives may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(▇) ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇, United States counsel for Westpac, the Issuer Trustee and the Trust Manager, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance satisfactory to the Representatives, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(k) ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇, United States federal income tax counsel for Westpac, the Issuer Trustee and the Trust Manager, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance satisfactory to the Representatives:
(l) Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP▇▇, counsel for the CompanyIssuer Trustee, to shall have furnished to the Representatives their written opinion, dated the Closing Date Date, in form and addressed substance satisfactory to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date papers and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters information as the Representatives they may reasonably require, and the Company and the Selling Stockholder shall have furnished request to such counsel such documents as they request for the purpose of enabling enable them to pass upon such matters.;
(dm) The Company ▇▇▇▇▇ & ▇▇▇▇, London, counsel for the Note Trustee, shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Companytheir written opinion, dated the Closing Date, in form and substance satisfactory to the effect that the signers of Representatives, and such certificate counsel shall have carefully examined the Registration Statement, the Prospectus, any supplements received such papers and information as they may reasonably request to the Prospectus 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 enable them to be performed or satisfied at or prior to the Closing Datepass upon such matters;
(iin) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, Counsel to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company Interest Rate Swap 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 Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder Currency Swap Provider shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date written opinion and addressed substance satisfactory to the Representatives, ; (o) the Representative shall have received a letter or letters from each counsel delivering any written opinion to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction Rating Agency in connection with the purchase and distribution of transaction described herein which is not otherwise described in this Agreement allowing the Securities by the Underwriters and Representative to rely on such other approvals (specified in such opinion) opinion as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable if it were addressed to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablRepresentative;
Appears in 1 contract
Sources: Underwriting Agreement (Westpac Securitisation Management Pty 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 and the Selling Stockholder 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 Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed filed, or transmitted by a means reasonably calculated to result in filing with the Commission, in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatenedthreatened by the Commission.
(b) The Company shall have requested and caused ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) Company has been duly incorporated and is validly existing as a corporation in good standing under the laws General Corporation Law of the jurisdiction in which it is chartered or organizedState of Delaware, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualificationthe States of California and New York and the District of Columbia;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the shares of Common Stock underlying the Selling Stockholder Options have been duly authorized; the outstanding shares of Common Stock (including the Securities being sold under the Underwriting Agreement by the Selling Stockholders) have been duly authorized and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares Shares of capital stock of the Company Common Stock are not entitled to preemptive or other rights to subscribe for the Securities; and;
(iii) such counsel has not been engaged by the Company to give substantive attention to, except as set forth or to represent it in connection with, any pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or its property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus;
(iv) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made, or the Prospectus and any supplements thereto have been transmitted by a means reasonably calculated to result in filing with the Commission, in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued by the Commission and, to the best of such counsel's knowledge, no proceedings for that purpose have been instituted or threatened;
(v) this Underwriting Agreement has been duly authorized, executed and delivered by the Company;
(vi) the Company is not an "investment company" required to be registered under the Investment Company Act of 1940, as amended;
(vii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required to be obtained or made by the Company under the laws of the United States of America in connection with the sale of the Securities to the Underwriters in the manner contemplated in this Underwriting Agreement, except such as have been obtained under the Act and such other approvals (specified in such opinion) as have been obtained; and
(viii) none of the exercise of the Options, the issue of the Exercise Shares, the sale of the Securities by the Selling Stockholders, or the fulfillment by the Company and the Selling Stockholders of the terms of this Underwriting Agreement will conflict with, result in a breach or violation of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries pursuant to, (a) the charter or by-laws of the Company, (b) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument identified to such counsel in a certificate by the Company as being material to which the Company is a party or bound or to which its property is subject, or (c) any statute, law, rule, regulation, judgment, order or decree applicable to the Company of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its properties (excluding for purposes of this paragraph (viii) federal and state securities laws and regulations). In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent auditors of the Company and your representatives and counsel at which the contents of the Registration Statement and the Prospectus were discussed. Such counsel also may state that because the purpose of their professional engagement was not to establish or confirm factual matters and because the scope of their examination of the affairs of the Company did not permit them to verify the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, they 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 Prospectus. Such counsel also shall state that, on the basis of the foregoing, except for the financial statements and schedules and other financial and statistical data included therein, as to which such counsel need express no opinion or belief: (a) such counsel is of the opinion that the Registration Statement at the time it became effective appeared on its face to comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and (b) no facts have come to such counsel's attention that lead such counsel to believe that (i) the Registration Statement at the time it became effective contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) the Prospectus as of the date thereof and as of the date of such opinion contained or contain an untrue statement of a material fact or omitted or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. On the basis of the foregoing, no facts have come to such counsel's attention that lead such counsel to believe that (i) there are any outstanding options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
Company, except as set forth in the Prospectus or (ivii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References Reference to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Selling Stockholders shall have caused __________________, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives, to the effect that:
(i) to the knowledge of such counsel, the Underwriting Agreement has been duly executed and delivered by the Selling Stockholders;
(ii) to the knowledge of such counsel, the delivery by each Selling Stockholder to the several Underwriters of certificates for the Securities being sold under the Underwriting Agreement by such Selling Stockholder against payment therefor as provided in the Underwriting Agreement, will pass title to such Securities to the several Underwriters, free and clear of all adverse claims whatsoever;
(iii) to the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental agency or body is required for the sale of the Securities by the Selling Stockholders to the Underwriters pursuant to the Underwriting Agreement, except such as may have been obtained under the Act and such other approvals as have been obtained; and
(iv) neither the sale of the Securities by the Selling Stockholders to the Underwriters nor the fulfillment of the terms hereof by any Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the terms of any indenture or other agreement or instrument known to such counsel and to which any Selling Stockholder is a party or bound, or any judgment, order or decree known to such counsel to be applicable to any Selling Stockholder of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over any Selling Stockholder. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of the Selling Stockholders and public officials.
(d) The Representatives shall have received from Cravath, Swaine & ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Underwriting Agreement and that:
(i) the representations and warranties of the Company in this Underwriting Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date Date, and the Company has complied 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(ef) The Each Selling Stockholder shall have requested and caused furnished to the Representatives a certificate, counsel for the signed by such Selling Stockholder, dated the Closing Date, to the effect that (i) the signer of such certificate has carefully examined the Registration Statement, the Prospectus, any supplement to the Prospectus, this Underwriting Agreement, (ii) the representations and warranties of each Selling Stockholder in this Underwriting 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 and (iii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(g) The Company shall have caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives, to confirming that they are independent accountants within the meaning of the Act and the applicable published rules and regulations thereunder, and stating in effect that:
(i) this Agreement in their opinion the audited financial statements and financial statement schedules included in the Registration Statement and the Custody Agreement Prospectus and Power reported on by them comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, Act and the Selling Stockholder has full legal right related published rules and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderregulations;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts basis of such Underwriters maintained carrying out certain specified procedures (but not an examination in accordance with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning generally accepted auditing standards) which would not necessarily reveal matters of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter significance with respect to the comments set forth in such Securities;letter; a reading of the minutes of the meetings of the stockholders, directors and any 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, 1999, nothing came to their attention which caused them to believe that:
(1) with respect to the period subsequent to December 31, 1999, 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 stockholder's equity of the Company as compared with the amounts shown on the December 31, 1999, balance sheet included in the Registration Statement and the Prospectus, or for the period from January 1, 2000 to such specified date there were any decreases, as compared with the corresponding period in the preceding fiscal quarter, in net revenues or income before income taxes or in total or per share amounts of net income, income from operations and interest 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; and
(2) the information included in the Registration Statement and Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information) and Item 402 (Executive Compensation) is not in conformity with the applicable disclosure requirements of Regulation S-K; and
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such they have performed certain other specified procedures as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliabl
Appears in 1 contract
Sources: Underwriting Agreement (Corporate Executive Board 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 and the Selling Stockholder 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 Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ Coie LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described Representatives substantially in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws form of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the ActAnnex A hereto. In rendering such opiniontheir opinion as aforesaid, such counsel may rely (A) upon an opinion or opinions, each dated the Closing Date, of other counsel retained by them or the Company as to matters involving the application of laws of any jurisdiction other than the State of Texas and United States or the State of Delaware or the Federal laws Washington, provided that (1) each such local counsel is acceptable to you, (2) such reliance is expressly authorized by each opinion so relied upon and a copy of the United Stateseach such opinion is delivered to you and is, in forma and substance satisfactory to the extent they deem proper them and specified their counsel, and (3) counsel shall state in such opinion, upon the their opinion of other counsel of good standing whom that they believe to be reliable that they and who are satisfactory to counsel for the Underwriters Underwriter is justified in relying thereon; and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.King & Spalding, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board Chief Executive Officer or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus 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 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 or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiariessubsidiaries, 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 Final Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder Company shall have requested and caused , counsel for the Selling Stockholder, Deloitte & Touche LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives, to confirming that they are independent accountants within the effect meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for the three-month period ended March 31, 2002, and as at March 31, 2002, in accordance with Statement on Auditing Standards No. 71, and stating in effect, except as provided in Schedule I hereto, that:
(i) this Agreement in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Custody Agreement Final Prospectus and Power reported on by them comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed the Act and delivered the Exchange Act and the related rules and regulations adopted by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderCommission;
(ii) assuming that each Underwriter acquires on the basis of a reading of the latest unaudited financial statements made available by the Company and its interest subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 71, of the unaudited interim financial information for the three-month period ended March 31, 2002, and as at March 31, 2002; 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 audit and compensation 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, 2001, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated by reference in the Securities it has purchased from Registration Statement and the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the UCC), each Underwriter Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that has purchased such Securities delivered on of the Closing Date to The Depository Trust Company audited financial statements included or other securities intermediary incorporated by making payment therefor as provided herein, reference in the Registration Statement and that has had such Securities credited the Final Prospectus;
(2) with respect to the securities account or accounts period subsequent to March 31, 2002, there were any changes, at a specified date not more than five days prior to the date of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement the letter, in the consolidated total debt (within the meaning defined as lines of Section 8-102(a)(17credit plus notes payable) of the UCC) Company and its subsidiaries or capital stock of the Company or decreases in consolidated assets or the shareholders' equity of the Company as compared with the amounts shown on the March 31, 2002 consolidated balance sheet included or incorporated by reference in the Registration Statement and the Final Prospectus, or for the period from April 1, 2002, to such Securities purchased by such Underwriterspecified date there were any decreases, and no action based on an adverse claim (within the meaning as compared with March 31, 2001, in consolidated revenue or income before income taxes or in total or per share amounts of Section 8-105 net income of the UCCCompany 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 Representatives;
(3) may be asserted against such Underwriter the information included or incorporated by reference in the Registration Statement and Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with respect to such Securities;the applicable disclosure requirements of Regulation S-K; and
(iii) no consentthey have performed certain other specified procedures as a result of which they determined that certain information of an accounting, approvalfinancial or statistical nature (which is limited to accounting, authorization financial or order statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Final Prospectus and in Exhibit 12 to the Registration Statement, including the information set forth under the captions "Capitalization" and "Selected Financial Information" in the Final Prospectus, the information included or incorporated by reference in Items 1, 2, 6, 7 and 11 of the Company's Annual Report on Form 10-K, incorporated by reference in the Registration Statement and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any court amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or governmental agency decrease specified in the letter or body is required for letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the consummation by the Selling Stockholder condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions contemplated hereinin the ordinary course of business, except such as may have been obtained under set forth in or contemplated in the Act and such as may be required under the blue sky laws Final Prospectus (exclusive of any jurisdiction supplement thereto) the effect of which, in connection 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 purchase and distribution offering or delivery of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or Registration Statement (exclusive of any amendment thereof) and the fulfillment Final Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the terms hereof Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representatives.
(j) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the 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 Selling Stockholder will conflict with, result Representatives . Notice of such cancellation shall be given to the Company in a breach writing or violation of, by telephone or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel facsimile confirmed in writing. The documents required to be applicable to delivered by this Section 6 shall be delivered at the Selling Stockholder or any office of its subsidiaries of any courtKing & Spalding, regulatory bodycounsel for the Underwriters, administrative agencyat ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, governmental body or arbitrator having jurisdiction over ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablClosing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Shurgard Storage Centers 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 any Shares hereunder are subject to the accuracy of and compliance with the representations representations, warranties and warranties agreements on the part of the Company Fund and the Selling Stockholder Adviser contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 4 hereof, ; to the accuracy and completeness of the all statements of the Company and Fund, the Selling Stockholder Adviser or any of its officers made in any certificates pursuant to the provisions hereof, to the performance by the Company and Fund or the Selling Stockholder Adviser of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives Representative agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b)497, the Prospectus, and any such supplement, will be 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 order pursuant to Section 8(e) of the 1940 Act shall have been issued and no proceedings for that purpose shall have been instituted or threatened, 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 furnished to the Representative as soon as practicable from the Closing Date a report showing compliance with the asset coverage requirements of the 1940 Act and a Basic Maintenance Report (as defined in the Statement), in form and substance reasonably satisfactory to the Representative.
(c) The Fund shall have requested and caused Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the CompanyFund, to have furnished to the Representatives Representative their opinion, dated the Closing Date and addressed to the RepresentativesRepresentative, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) The Fund has been duly incorporated formed and is validly existing as a corporation statutory trust in good standing under the laws of the jurisdiction in which it is chartered or organizedState of Delaware, with full corporate statutory trust power and authority to own or leaseown, as the case may be, lease and to operate its properties and to conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation entity and is in good standing under the laws of each jurisdiction California (which requires are the only jurisdictions identified by management of the Fund to such qualificationcounsel in which the Fund owns or leases property or operates or conducts its business);
(ii) all All the outstanding shares of capital stock beneficial interest of ATX Technologies and ATX Europe the Fund have been duly authorized and validly authorized and issued and issued, are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies nonassessable and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien preemptive or encumbrance;
(iii) the Company’s authorized capitalization is as set forth in the Prospectussimilar rights; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock Shares have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreementagainst payment thereof in accordance with the terms hereof, will be validly issued, fully paid and nonassessable; the Securities being sold hereunder nonassessable and free of any preemptive or similar rights that entitle or will entitle any person to acquire any Shares upon issuance thereof by the Company are duly listedFund, and admitted will conform to the description thereof in the Registration Statement and authorized for trading, subject the Prospectus (and any amendment or supplement to official notice either of issuance them); and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock beneficial interest of the Company are not entitled Fund conform to preemptive or other rights to subscribe for the Securities; and, except as set forth description thereof in the Registration Statement and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iviii) to To the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries Fund or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is are no franchiseagreements, contract contracts, indentures, leases or other document of a character instruments that are required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as requiredrequired by the Act, the 1940 Act or the Rules and Regulations; and the statements included in the Prospectus under the headings “Description "Tax Matters" and "Anti-Takeover and Other Provisions in the Declaration of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case Trust" insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(viv) the The Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has 497 have been made in the manner and within the time period required by Rule 424(b)497; 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 threatened; and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Act Rules and Regulations, the 1940 Act and the rules thereunder1940 Act Rules and Regulations;
(v) The execution and delivery of and the performance by the Fund of its obligations under this Agreement and the Fund Agreements have been duly and validly authorized by the Fund and this Agreement and the Fund Agreements have been duly executed and delivered by the Fund and constitute the valid and legally binding agreements of the Fund, enforceable against the Fund in accordance with their terms, except as rights to indemnity and contribution hereunder and thereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Fund's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles;
(vi) The Fund is duly registered with the Commission under the 1940 Act as a closed-end, diversified management investment company and all action has been taken by the Fund as required by the Act and the 1940 Act and the Rules and Regulations in connection with the issuance and sale of the Shares to make the public offering and consummate the sale of the Shares as contemplated by this Agreement; the Fund Agreements comply in all material respects with all applicable provisions of the Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations; and the Fund has not received any notice from the Commission pursuant to Section 8(e) of the 1940 Act with respect to the 1940 Act Notification or the Registration Statement;
(vii) No consent, approval, authorization, filing with or order of any court or governmental agency or body of the Federal government of the United States, the State of California or the State of Delaware is required in connection with the transactions contemplated herein or in the Fund Agreements, except such as have been made or obtained under the Act and the 1940 Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(viii) Neither the issuance and sale of the Shares, the execution, delivery or performance of this Agreement or any of the Fund Agreements by the Fund, nor the consummation by the Fund of the transactions contemplated hereby or thereby (i) conflicts or will conflict with or constitutes or will constitute a breach of the declaration of trust or by-laws of the Fund or the Statement, (ii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Fund is a party or by which it or any of its properties may be bound or (iii) violates or will violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Fund or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Fund pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Fund is subject;
(ix) To such counsel's knowledge, no holders of securities of the Fund have rights to the registration of such securities under the Registration Statement;
(x) Assuming that the execution and delivery of, and the performance by the Adviser of its obligations under, this Agreement, the After-Market Services Agreement and the Indemnification Agreement have been duly and validly authorized by the Adviser and assuming that this Agreement, the After-Market Services Agreement and the Indemnification Agreement have been duly executed and delivered by the Adviser, then this Agreement, the After-Market Services Agreement and the Indemnification Agreement constitute the valid and legally binding agreements of the Adviser, enforceable against the Adviser in accordance with their terms, except as rights to indemnity and contribution hereunder and thereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Adviser's obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles; and
(xi) Such counsel shall also state that such counsel has participated in conferences with officers and other representatives of the Fund, representatives of the independent public accountants of the Fund and representatives of the Underwriters at which the contents of the Registration Statement and Prospectus were discussed and, although such counsel has not independently verified and is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or Prospectus (except as to the extent stated, but only to the extent expressly stated, in such opinion), on the basis of the foregoing, that no reason fact has come to the attention of such counsel which leads them to believe that that on the Effective Date or the date the Registration Statement was last deemed amended, amended the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company Fund and public officials. References to the Prospectus in this paragraph (bc) shall also include any supplements thereto at the Closing Date. Such opinion may be subject to such other assumptions, qualifications, limitations and definitions as are usual and customary in the rendering of such opinions in the aforementioned jurisdictions.
(cd) The Representatives You shall have received from on the Closing Date an opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇ L.L.P.▇, Esq., counsel for the Underwriters, such opinion or opinionsAdviser, dated the Closing Date and addressed to the Representativesyou, with respect to the issuance and sale as Representative of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representativesseveral Underwriters, to the effect that:
(i) The Adviser has been duly formed and is validly existing as a corporation in good standing under the laws of the State of California, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus, and does not own or lease property or operate or conduct its business in any other jurisdiction;
(ii) The Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund, the After-Market Services Agreement or the Indemnification Agreement as contemplated by the Prospectus;
(iii) The Adviser has full corporate power and authority to enter into this Agreement, the Fund Agreements to which it is a party, the After-Market Services Agreement and the Custody Indemnification Agreement; and this Agreement, the Fund Agreements to which it is a party, the After-Market Services Agreement and Power of Attorney the Indemnification Agreement have been duly authorized, executed and delivered by the Selling StockholderAdviser and this Agreement, Fund Agreements to which the Adviser is a party, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this After-Market Services Agreement and the Custody Indemnification Agreement are each a valid and legally binding agreement of the Securities being sold Adviser, enforceable against the Adviser in accordance with its terms except as rights to indemnity and contribution hereunder and thereunder may be limited by such Selling Stockholder hereunderFederal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Adviser's obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles whether enforcement is considered in a proceeding in equity or at law;
(iiiv) assuming that each Underwriter acquires its interest This Agreement, the Fund Agreements to which the Adviser is a party, the After-Market Services Agreement and the Indemnification Agreement comply in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 all material respects with all applicable provisions of the UCC)1940 Act, each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein1940 Act Rules and Regulations, the Advisers Act and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, Advisers Act Rules and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such SecuritiesRegulations;
(iiiv) no consentNeither the execution, approvaldelivery or performance of this Agreement, authorization the Fund Agreements to which the Adviser is a party, the After-Market Services Agreement or order of any court or governmental agency or body is required for the Indemnification Agreement, nor the consummation by the Selling Stockholder Adviser of the transactions contemplated herein, except such as may have been obtained under the Act hereby and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals thereby (specified in such opinionA) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder conflicts or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in or constitutes or will constitute a breach of or violation ofdefault under, the articles of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with, or constitutes or will constitute a material breach of or material default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture material agreement, indenture, lease or other agreement or instrument known to such counsel and to which the Selling Stockholder Adviser is a party, or will result in the creation or imposition of any material lien, charge or encumbrance upon any material property or material assets of the Adviser, nor will any such action result in any material violation of any law of the State of New York, the Delaware General Corporation Law, the 1940 Act, the Advisers Act or any regulation or judgment, injunction, order or decree applicable to the Adviser or any of its subsidiaries is a party or boundproperties;
(vi) The description of the Adviser and its business in the Prospectus complies in all material respects with all requirements of the Act, or any judgment, order or decree known to the 1940 Act and the Rules and Regulations;
(vii) To the best knowledge of such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any courtafter reasonable inquiry, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than as described or contemplated in the State of Texas and the State of Delaware or the Federal laws of the United StatesProspectus, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablthere are no actions,
Appears in 1 contract
Sources: Underwriting Agreement (Franklin Templeton Limited Duration Income Trust)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Fund and the Selling Stockholder Advisers contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company and the Selling Stockholder Fund made in any certificates pursuant to the provisions hereof, to the performance by the Company and Fund or the Selling Stockholder Advisers of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the total public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM New York City time on the Business Day following the day on which the total public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b)497, the Prospectus, and any such supplement, will be 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 order pursuant to Section 8(e) of the 1940 Act shall have been issued and no proceedings for that purpose shall have been instituted or threatened, 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ Dechert LLP, counsel for the CompanyFund, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) The Fund has been duly incorporated formed and is validly existing as a corporation in good standing as a statutory trust under the laws of the jurisdiction in which it is chartered or organizedState of Delaware, with full corporate power and authority to own or leaseown, as the case may be, lease and to operate its properties and to conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification; and the Fund has no subsidiaries;
(ii) The Fund is duly registered with the Commission under the 1940 Act as a closed-end, non-diversified management investment company and all the outstanding shares of capital stock of ATX Technologies and ATX Europe have action has been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned taken by the Company either directly or through wholly owned subsidiaries free Fund as required by the Act and clear the 1940 Act and the Rules and Regulations in connection with the issuance and sale of the Securities to make the public offering and consummate the sale of the Securities as contemplated by this Agreement; the Fund Agreements comply in all material respects with all applicable provisions of the Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations; and the Fund has not received any perfected security interest and, notice from the Commission pursuant to Section 8(e) of the 1940 Act with respect to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien 1940 Act Notification or encumbrancethe Registration Statement;
(iii) This Agreement has been duly authorized, executed and delivered by the Company’s Fund;
(iv) The Fund Agreements have been duly authorized, executed and delivered by the Fund and constitute the valid and legally binding agreements of the Fund, enforceable against the Fund in accordance with their terms, except as rights to indemnity and contribution may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Fund's obligations thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles;
(v) Neither the issuance and sale of the Securities, the execution, delivery or performance of this Agreement or any of the Fund Agreements by the Fund, nor the consummation by the Fund of the transactions herein or therein contemplated or the adoption of the Fund's Dividend Reinvestment Plan (i) conflicts or will conflict with or constitutes or will constitute a breach of the declaration of trust or by-laws of the Fund, (ii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any agreement, indenture, lease or other instrument to which the Fund is a party or by which it or any of its properties may be bound or (iii) violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Fund or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Fund is subject;
(vi) The Fund's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company Fund conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus; the all outstanding shares of Common Stock Shares have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National MarketNYSE; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company Common Shares are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company Fund are outstanding;
(ivvii) to To the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries Fund or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is are no franchiseagreements, contract contracts, indentures, leases or other document of a character instruments that are required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as requiredrequired by the Act, the 1940 Act or the Rules and Regulations; and the statements included in the Prospectus under the headings “"Tax Matters," "Description of Capital Stock,” “Shares" and "Certain Relationships Provisions in the Agreement and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case Declaration of Trust" insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(vviii) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Fund Agreements, except such as have been made or obtained under the Act and the 1940 Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) No holders of securities of the Fund have rights to the registration of such securities under the Registration Statement; and
(x) The Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has 497 have been made in the manner and within the time period required by Rule 424(b)497; 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the 1940 Act and the rules thereunderRules and Regulations; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, amended the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company Fund and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives You shall have received from ▇on the Closing Date an opinion of ▇▇▇▇ ▇. ▇▇▇▇ L.L.P.▇▇▇▇, ▇▇., Esq., counsel for the Underwriters, such opinion or opinionsAdviser, dated the Closing Date and addressed to the Representativesyou, with respect to the issuance and sale as Representatives of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representativesseveral Underwriters, to the effect that:
(i) The Adviser has been duly formed and is validly existing in good standing as a limited liability company under the laws of the State of Arizona, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification.
(ii) The Adviser is duly registered under the Advisers Act as an investment adviser and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement, the Sub-Advisory Agreement, [the Additional Compensation Agreement] or the Structuring Fee Agreement as contemplated by the Prospectus;
(iii) The Adviser has full power and authority to enter into this Agreement Agreement, the Management Agreement, the Sub-Advisory Agreement, [the Additional Compensation Agreement] and the Custody Structuring Fee Agreement;
(iv) This Agreement has been duly authorized, executed and Power of Attorney delivered by the Adviser;
(v) The Management Agreement, the Sub-Advisory Agreement, [the Additional Compensation Agreement] and the Structuring Fee Agreement have been duly authorized, executed and delivered by the Selling StockholderAdviser and the Management Agreement, the Custody Sub-Advisory Agreement, [the Additional Compensation Agreement] and the Structuring Fee Agreement is are each a valid and legally binding on agreement of the Selling StockholderAdviser, enforceable against the Adviser in accordance with its terms except as rights to indemnity and contribution may be limited by federal or state securities laws and subject to the Selling Stockholder has full legal right qualification that the enforceability of the Adviser's obligations thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and authority and other laws relating to sell, transfer or affecting creditors' rights generally and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereundergeneral equitable principles;
(iivi) assuming that each Underwriter acquires its interest This Agreement, the Management Agreement, the Sub-Advisory Agreement, [the Additional Compensation Agreement] and the Structuring Fee Agreement comply in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 all material respects with all applicable provisions of the UCC)Act, each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein1940 Act, the Advisers Act, the Rules and that has had such Securities credited to Regulations and the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, Advisers Act Rules and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such SecuritiesRegulations;
(vii) Neither the issuance and sale of the Securities, the execution, delivery or performance of this Agreement, the Management Agreement, the Sub-Advisory Agreement, [the Additional Compensation Agreement] or the Structuring Fee Agreement nor the consummation by the Adviser of the transactions herein or therein contemplated (i) conflicts or will conflict with or constitutes or will constitute a breach of or default under the certificate of incorporation or bylaws, or other organizational documents, of the Adviser, (ii) conflicts or will conflict with, or constitutes or will constitute a breach of or default under any agreement, indenture, lease or other instrument to which the Adviser is a party or by which it or any of its properties may be bound or (iii) violates or will violates any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Adviser or any of their properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Adviser is subject;
(viii) The description of the Adviser and its business in the Prospectus complies in all material respects with all requirements of the Act, the 1940 Act and the Rules and Regulations;
(ix) To the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Adviser or its property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required by the Act, the 1940 Act or the Rules and Regulations;
(x) No consent, approval, authorization authorization, filing with or order of any court or governmental agency or body is required for on the consummation by part of the Selling Stockholder of Adviser in connection with the transactions contemplated hereinherein or in the Management Agreement, the Sub-Advisory Agreement, [the Additional Compensation Agreement] or the Structuring Fee Agreement, except such as may have been made or obtained under the Act, the 1940 Act and the Advisers Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained; and
(ivxi) neither Such counsel has no reason to believe that on the sale Effective Date or the date the Registration Statement was last deemed amended the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the Securities being sold by circumstances under which they were made, not misleading (in each case, other than the Selling Stockholder nor the consummation of any financial statements and other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict withfinancial and statistical information contained therein, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known as to which such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiariesneed express no opinion). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware Arizona or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablt
Appears in 1 contract
Sources: Underwriting Agreement (Ing Global Equity Dividend & Premium Opportunity Fund)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Subsidiary Guarantors 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 and the Selling Stockholder Subsidiary Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Subsidiary Guarantors of its their obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPAkerman, Senterfitt & Eidson, P.A., counsel for the Company, to have furnished to the Representatives t▇▇ ▇▇▇resentatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure so to qualify does not have a Material Adverse Effect;
(ii) each of the CompanySubsidiaries (other than Aviation Sales Company FSC, ATX Technologies and ATX Europe GmbH (“ATX Europe”Ltd., a Barbados corporation which has no material operations or assets) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) , except where the failure so to qualify does not have a Material Adverse Effect; and all the outstanding shares of capital stock of ATX Technologies and ATX Europe each of the Subsidiaries (other than Aviation Sales Company FSC, Ltd., a Barbados corporation which has no material operations or assets) have been duly and validly authorized and issued issued, and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned of record and, to the best knowledge of such counsel after reasonable inquiry, beneficially by the Company either directly directly, or through wholly owned subsidiaries Subsidiaries, free and clear of any perfected security interest and, to the best knowledge of such counsel, counsel after due reasonable inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Prospectus; and the capital stock of the Company conforms Securities conform in all material respects to the description thereof contained in the Prospectus; all of the outstanding shares of Common Stock capital stock of the Company have been duly and validly authorized and issued and issued, are fully paid and nonassessable; nonassessable and are free of any preemptive rights and, to the Securities being sold hereunder by best knowledge of such counsel after due inquiry, other rights to subscribe for such capital stock;
(iv) this Agreement and the Company Indenture have been duly and validly authorized, executed and delivered, the Indenture has been duly qualified under the Trust Indenture Act, and this Agreement and the Indenture constitute a legal, valid and binding instruments enforceable against the Company and the Subsidiary Guarantors in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law); and the Securities have been duly authorized and, when issued executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listedconstitute legal, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock binding obligations of the Company are not entitled to preemptive or other rights the benefits of the Indenture, and the description of the Securities in the Prospectus will conform in all material respects to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(ivv) the Subsidiary Guarantees to be endorsed on the Securities have been duly and validly authorized by each Subsidiary Guarantor and when executed by the Subsidiary Guarantors in accordance with the Indenture and upon delivery to the Underwriters, will have been validly issued and delivered, and will constitute valid and binding obligations of the Subsidiary Guarantors entitled to the benefits of the Indenture, and the description of such Subsidiary Guarantees in the Prospectus will conform in all material respects to such Subsidiary Guarantees;
(vi) to the best knowledge of such counselcounsel after reasonable inquiry, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliabl
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder 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 Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree Representative agrees in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Lippes, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives Representative their opinion, dated the Closing Date and addressed to the RepresentativesRepresentative, to the effect that:
(i) each of the Company, ATX Technologies Company and ATX Europe GmbH (“ATX Europe”) the Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to be so qualified or in good standing would not individually or in the aggregate have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock (including the Underwritten Securities being sold hereunder by the Selling Stockholders) have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for quotation and trading, subject to official notice of issuance and evidence of satisfactory distribution, on NASDAQ; the Nasdaq National MarketUnderwritten Securities being sold hereunder by the Selling Stockholders are duly listed and admitted for trading on NASDAQ; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, amended the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and or statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtainedobtained and except where the failure to obtain any such consent, approval, authorization or order would not, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business or an adverse effect on the execution and delivery of this Agreement or the consummation of the transactions contemplated herein;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i1) the charter or by-laws of the Company or its the Subsidiaries, (ii2) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument known to such counsel and to which the Company or any of the Subsidiaries is a party or bound or to which its or their property is subject, or (iii3) any statute, law, rule, regulation, judgment, order or decree known to such counsel to be applicable to the Company or any of the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of the Subsidiaries or any of its or their properties;; and
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State States of Texas New York and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives Selling Stockholders shall have received from furnished to the Representative the opinion of Lippes, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.LLP, counsel for the Selling Stockholders, dated the Closing Date, to the effect that:
(i) this Agreement has been duly authorized, executed and delivered by the Selling Stockholders and each Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from such Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by any Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by any Selling Stockholder nor the consummation of any other of the transactions herein contemplated by any Selling Stockholder or the fulfillment of the terms hereof by any Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the organizational or other governing documents of any Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which any Selling Stockholder is a party or bound, or any judgment, order or decree known to such counsel to be applicable to any Selling Stockholder of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over any Selling Stockholder. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York and Delaware or the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Selling Stockholders and public officials.
(d) The Representative shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company and the each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement theretohereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiariessubsidiaries, 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 Prospectus (exclusive of any supplement thereto).
(ef) The Each Selling Stockholder shall have furnished to the Representative a certificate, signed by a majority of the trustees of each such Selling Stockholder, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplement to the Prospectus and this Agreement and that the representations and warranties of such Selling Stockholder in this Agreement are true and correct on and as of the Closing Date to the same effect as if made on the Closing Date.
(g) Company shall have requested and caused , counsel for the Selling Stockholder, PricewaterhouseCoopers LLP to have furnished to the Representatives their opinionRepresentative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling StockholderRepresentative, and the Selling Stockholder has full legal right and authority to sellin accordance with Statement on Auditing Standards No. 72, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming confirming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablth
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 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▇▇, L.L.P., counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate right, power and authority to own or leaseexecute and deliver this Agreement and the Indenture; each of this Agreement and the Indenture has been duly authorized, executed and delivered and constitutes a legal, valid and binding agreement of the Company; the Indenture has been duly qualified under the Trust Indenture Act; each of this Agreement and the Indenture is enforceable against the Company in accordance with its terms (in each case subject, as to the case may beenforcement of remedies, and to operate its properties and conduct its business as described applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect); the Securities are in the Prospectusform contemplated by the Indenture, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters Representatives pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listedconstitute legal, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock binding obligations of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any benefits of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as requiredIndenture; and the statements included set forth under the heading "Description of Notes" in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”Final Prospectus, in each case insofar as such statements purport to summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale certain provisions of the Securities and the application of the proceeds thereof as described in the ProspectusIndenture, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in provide a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration fair summary of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 Dateprovisions;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements information included or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act headings "Risk Factors--Government Regulation", "Business and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the Properties--Regulation--United States", to "Legal Proceedings" and "Management's Discussion and Analysis of Financial Condition and Results of Operations--Bank Credit Facilities" fairly summarizes the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablmatters therein described;
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities Shares and the Option SecuritiesShares, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Shareholders 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 Stockholder Shareholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Shareholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused each of Gross, Kleinhendler, Hodak, Halevy, Greenberg & Co. ("GKHHG") an▇ ▇▇▇▇▇▇, Shiloh, Givon, Meir Law Firm, Israeli ▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinionrespective opinions, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedState of Israel, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification; no proceeding has been instituted by the Registrar of Companies in Israel for the dissolution of the Company;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Prospectus; the share capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock Ordinary Shares (including the Selling Shareholder Shares and the Option Shares) have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities Shares being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities Shares are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the SecuritiesShares; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iviii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any Israeli court or governmental agency, authority or body or any arbitrator involving the Company or any of the Significant Subsidiaries or its or their property properties of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document governed by Israeli law, which is of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, and which is not described or filed as required; and the statements included in the Prospectus under the headings “Description "Risk Factors - Under current U.S. and Israeli law, we may not be able to enforce covenants not to compete and therefore may be unable to prevent our competitors from benefiting from the expertise of Capital Stocksome of our former employees,” “Certain Relationships " "Risk Factors - The tax benefits available to us require us to meet several conditions and may be terminated or reduced in the future, which would increase our costs and taxes," "Risk Factors - Provisions of our articles of association and Israeli law may delay, prevent or make difficult an acquisition of Syneron, which could prevent a change of control and, therefore, depress the price of our shares," "Management," "Related Party Transactions,” “" "Description of Share Capital," "Shares Eligible for Future Sale” ," "Israeli Taxation" and “Underwriting”, in each case "Enforceability of Civil Liberties" insofar as such statements summarize legal mattersmatters as to Israeli law, provisions of the Company's articles of association, or agreements, documents or proceedings discussed thereintherein governed by Israeli law, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliabl
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be shall 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ furnished to the Representatives the opinion of Akin Gump Strauss Hauer & Feld LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the RepresentativesClo▇▇▇▇ ▇▇t▇, to the effect ▇▇ th▇ ▇▇fect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and The Company is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedState of Texas, with full corporate power and authority to own or lease, as the case may be, and to operate lease its properties and conduct its business as described in the Final Prospectus, ; and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe each of the Subsidiaries have been duly authorized and validly authorized and issued and issued, are fully paid and nonassessable, non-assessable; and, to such counsel's knowledge, except (A) as otherwise reflected in the Company's financial statements, (B) as described in the Registration Statement or (C) as set forth on Schedule III hereto or as disclosed in such counsel's opinion, (x) the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe each of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries its subsidiary free and clear of any perfected all liens, encumbrances and security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
interests and (iiiy) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or other rights to convert any obligations into or exchange any securities for, shares of capital stock or of or ownership interests in the Company Subsidiaries are outstanding;.
(ivii) The Indenture and the Securities conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(iii) Except as described in the Final Prospectus, to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before holder of any court or governmental agency, authority or body or any arbitrator involving securities of the Company or any other person has the right, contractual or otherwise, which has not been satisfied or effectively waived, to cause the Company to sell or otherwise issue to them, or to permit them to underwrite the sale of, any of the Subsidiaries Securities or its or their property of a character required the right to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract have any Common Stock or other document securities of a character required to be described the Company included in the Registration Statement or Prospectusthe right, as a result of the filing of the Registration Statement, to require registration under the Act of any shares of Common Stock or to be filed as an exhibit theretoother securities of the Company.
(iv) the Indenture has been duly authorized, which is not described or filed as required; executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms and the statements included Securities have been duly authorized and, when executed and authenticated in accordance with the Prospectus under provisions of the headings “Description Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”the Company entitled to the benefits of the Indenture (subject, in each case insofar respect to both the Indenture and the Securities, as such statements summarize legal mattersto enforcement of remedies, agreementsto applicable bankruptcy, documents reorganization, insolvency, fraudulent conveyance or proceedings discussed thereintransfer, are accurate and fair summaries of such legal matters, agreements, documents moratorium or proceedingsother laws affecting creditors' rights generally from time to time in effect);
(v) the The Registration Statement has become effective under the Act; any required filing of the ProspectusAct and, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose with respect thereto have been instituted or are pending or threatened under the Act.
(vi) The Registration Statement, the Final Prospectus and the Registration Statement each amendment or supplement thereto and the Prospectus documents incorporated by reference therein (other than the financial statements and other financial and statistical information contained therein, each as amended to which such counsel need express no opiniondate) comply as to form in all material respects with the applicable requirements of the Act or the Exchange Act, as applicable and the applicable rules thereunder; and such counsel has no reason to believe regulations thereunder (except that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion as to the statistical information contained in the Final Prospectus or financial statements, schedules and other financial information incorporated by reference therein).
(vii) The statements under the captions "Business" and "Description of the Notes" in the Final Prospectus, insofar as such statements constitute a summary of documents referred to therein or matters of law, are accurate summaries and fairly and accurately present the information called for with respect to such documents and matters in all material respects.
(viii) Except as set forth on Schedule III, to such counsel's knowledge, there are no contracts or documents required to be filed as exhibits to the Registration Statement or described in the Registration Statement or the Final Prospectus (excluding any document incorporated therein by reference) which are not so filed or described as required, and such contracts and documents as are summarized in the Registration Statement or the Final Prospectus (excluding any document incorporated therein by reference) are fairly summarized in all material respects.
(ix) Except as set forth on Schedule III, to such counsel's knowledge, there are no material legal proceedings pending or threatened against the Company or any of the Subsidiaries which are of a character required to be disclosed in the Final Prospectus and which has not been properly disclosed therein.
(x) The execution and delivery of the Indenture, the issuance and sale of the Securities and the execution and delivery of this Agreement and the consummation of the transactions herein contemplated do not and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, (a) the Articles of Incorporation or (b) By-laws of the Company, or (c) to such counsel's knowledge, any agreement or instrument filed as an exhibit to the Company's most recent annual report on Form 10-K or any subsequent quarterly report of the Company on Form 10-Q (other than licenses or permits granted by the FCC, on which such counsel need not express any opinion);, or (d) will not contravene any law, rule or regulation of the United States or the State of Texas or the General Corporation Law of the State of Delaware, or, to such counsel's knowledge, any order or decree of any court or governmental agency or instrumentality, except, with respect to clause (c) above, a conflict, breach or default which would not have a materially adverse effect on the business or financial condition of the Company and its subsidiaries taken as a whole.
(vixi) this This Agreement has been duly authorized, executed and delivered by the Company;.
(viixii) No approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body having jurisdiction over the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required necessary in connection with the execution and delivery of this Agreement and the consummation of the transactions herein contemplated herein, (other than as may be required by the NASD or NYSE or as required by State securities and Blue Sky laws as to which such counsel need express no opinion) except such as have been obtained under or made, specifying the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;same.
(ixxiii) neither the issue The Company is not, and sale will not become, as a result of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict withtransactions contemplated by this Agreement, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets and application of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except net proceeds therefor as set forth in or contemplated described in the Prospectus (exclusive of any supplement thereto)Final Prospectus, no holders of securities of the Company have rights required to the registration of such securities register as an investment company under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the 1940 Act. In rendering such opinion, such counsel may rely (A) as to matters involving governed by the application of laws of any jurisdiction states other than the State of Texas or Federal laws on local counsel in such jurisdictions, provided that in each case such counsel shall state that they believe that they and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified Underwriters are justified in relying on such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officialscertificates or other written statements of officers or departments of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company and any Subsidiary. References In addition to the Prospectus in this paragraph (b) matters set forth above, such opinion shall also include a statement to the effect that nothing has come to the attention of such counsel which leads them to believe that the Registration Statement, as of the time it became effective under the Act, the Final Prospectus or any supplements thereto at amendment or supplement thereto, on the date it was filed pursuant to Rule 424(b) and the Registration Statement and the Final Prospectus, or any amendment or supplement thereto, as of the Closing Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (except that such counsel need express no view as to matters pertaining to the statistical information contained in the Final Prospectus or financial statements, schedules and other financial information contained or incorporated by reference in the Final Prospectus). With respect to such statement, such counsel may state that their belief is based upon the procedures set forth therein, but is without independent check and verification.
(c) The Underwriters shall have received on the Closing Date the opinion of Wiley Rein & Fielding LLP, special FCC counsel to the Company, d▇▇▇▇ ▇▇▇ ▇los▇▇▇ ▇▇▇▇, addressed to the Underwriters as is reasonably acceptable to the Underwriters.
(d) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.Cravath, Swaine & Moore LLP, counsel for the Underwriters, such opinion or opinions, dated dat▇▇ the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board Chief Executive Officer or the President and the principal financial or accounting officer of the Company, in their capacity as such, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date Date, and the Company has complied 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 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 Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiariessubsidiaries, 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 Final Prospectus (exclusive of any supplement thereto).
(ef) The Selling Stockholder At the Execution Time and at the Closing Date Ernst & Young LLP shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, letters dated as of the Execution Time and the Closing Date in form and addressed substance satisfactory to the Representatives.
(g) Except as agreed to by UBS Securities LLC, subsequent to the effect that:Execution Time, there shall not have been any decrease in the rating of any of the Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purpose of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ih) Prior to the Closing Date the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 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 Custody Agreement and Power Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of Attorney have been duly authorized, executed and 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 5 shall be delivered at the Selling Stockholderoffice of Cravath, Swaine & Moore LLP, counsel for the Custody Agreement is valid and binding on the Selling StockholderUnderwriters, and the Selling Stockholder has full legal right and authority to sellat Worldwide Plaza, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC)825 Eight▇ ▇▇▇nue, each Underwriter that has purchased such Securities delivered New York, New York, on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablDate.
Appears in 1 contract
Sources: Underwriting Agreement (Clear Channel 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 and the Selling Stockholder 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 Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLPP.A., counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualificationqualification and in which the failure to be so qualified could reasonably be expected to have a material adverse effect on the Company;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of does not have any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrancesubsidiaries;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock (including the Securities being sold hereunder by the Selling Stockholders) have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold by the Selling Stockholders are duly listed, and admitted and authorized for trading, on the National Market System of Nasdaq and the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distributionissuance, on the Nasdaq National MarketMarket System of Nasdaq; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, to the knowledge of such counsel, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included or incorporated by reference in the Prospectus under the headings “heading "Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements " fairly summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedingsthe matters therein described;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, amended the Registration Statement contained any 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 therein, in the light of the circumstances under which they were made, not misleading or that the Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries its subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiariessubsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument known to such counsel and to which the Company or the Subsidiaries its subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree known to such counsel and applicable to the Company or the Subsidiaries its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries its subsidiaries or any of its or their properties;, which, in the case of clause (iii), to the knowledge of such counsel could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole; and
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware Minnesota or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives Selling Stockholders shall have received from requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused P.A., counsel for the Selling StockholderStockholders, to have furnished to the Representatives their opinion, opinion dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling StockholderStockholders, the Custody Agreement is valid and binding on the Selling Stockholder, Stockholders and the each Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the such Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the any Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the any Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the any Selling Stockholder or the fulfillment of the terms hereof by the any Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the any Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the any Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the any Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware Minnesota or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablreliable and who are satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of the Selling Stockholders and public officials.
(d) The Representatives shall have received from ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the 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 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 Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(f) Each Selling Stockholder shall have furnished to the Representatives a certificate, signed by such Selling Stockholder, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, any supplement to the Prospectus 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 Company shall have requested and caused PriceWaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules and pro forma financial statements included or incorporated by reference in the Registration 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 Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the l
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The ------------------------------------------------- obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder 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 Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b1) The Company shall have requested and caused ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) the Company and each of the CompanyMaterial Subsidiaries (other than Westbrooke Acquisition Corp., ATX Technologies The Westbrooke Companies, Inc. and ATX Europe GmbH Westbrooke Communities, Inc., collectively, the "Westbrooke Entities") have been duly organized and are validly existing as corporations or partnerships, as applicable;
(“ATX Europe”ii) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and this Agreement has been duly incorporated executed and delivered by the Company;
(iii) the issuance, offering and sale of the Securities to the Underwriters by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the transactions herein contemplated do not (A) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained and such as may be required under state securities or blue sky laws, or (B) violate any statute, rule or regulation known to such counsel and applicable to the Company or any of the Material Subsidiaries;
(iv) the Registration Statement has become effective under the Act, and to such counsel's knowledge no stop order suspending its effectiveness has been issued and no proceedings for that purpose are pending before or contemplated by the Commission;
(v) the statements under the caption "Description of Common Stock" in the prospectus supplement constituting part of the Final Prospectus, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;
(vi) the Company is validly existing not or, after giving effect to the offering and sale of the Securities and the application of the net proceeds thereof as a corporation described in the Final Prospectus, will not be, an "investment company" as such term is defined in the Investment Company Act of 1940, as amended;
(vii) the Company and each of the Material Subsidiaries (other than the Westbrooke Entities) are in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may betheir respective jurisdictions of organization, and to operate its properties and conduct its business as described in the Prospectus, and is are duly qualified to do transact business as a foreign corporation corporations or partnerships and is are in good standing under the laws of each jurisdiction identified in a certificate of the Company, executed by the Chief Executive Officer and the Senior Vice President-Finance of the Company (the "Officers' Certificate"), as being jurisdictions in which requires any of such qualificationentities owns or leases property, maintains or has an office or is engaged in the business of developing real property, building and selling homes, except where the failure to be so qualified would not result in material liability or disability to the Company and its subsidiaries, taken as a whole;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iiiviii) the Company’s 's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Final Prospectus; the outstanding shares of Common Stock (including the Securities being sold hereunder by the Selling Stockholders) have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form;
(ix) the Company and each of the Material Subsidiaries (other than the Westbrooke Entities) have the corporate or partnership power to own or lease their respective properties and conduct their respective businesses as described in the Final Prospectus, and the Company has the corporate power to enter into this Agreement and to carry out all the terms and provisions thereof to be carried out by it;
(x) the issued shares of capital stock of each of the Material Subsidiaries (other than Standard Pacific of Texas, L.P. and the Westbrooke Entities) have been duly authorized and validly issued, are fully paid and nonassessable; the issued partnership interests of Standard Pacific of Texas, L.P. have been duly and validly issued; and all such shares and partnership interests are owned of record by the Company or a wholly owned subsidiary of the Company and, to the knowledge of such counsel, free and clear of any other security interests, liens, encumbrances or claims;
(xi) to the knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are not entitled as such to any preemptive or other rights to subscribe for any of the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(ivxii) to the knowledge of such counselcounsel without investigation of court records, there no legal or governmental proceedings are pending to which the Company or any of its Material Subsidiaries (other than the Westbrooke Entities) is a party or to which the property of the Company or any of its Material Subsidiaries (other than the Westbrooke Entities) is subject that are required to be described in the Final Prospectus and are not described therein and no pending such proceedings have been threatened against the Company or threatened actionany of its Material Subsidiaries (other than the Westbrooke Entities) or with respect to any of their respective properties;
(xiii) the issuance, suit offering and sale of the Securities to the Underwriters by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein and therein contemplated do not (A) conflict with or proceeding result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument to which the Company or any of its Material Subsidiaries is a party or by which the Company or before any of its Material Subsidiaries or any of their respective properties are bound, which is identified in the Officers' Certificate as being material to the business of the Company (the "Material Agreements"), or any judgment, decree or order of any court or other governmental agency, authority or body or any arbitrator involving applicable to the Company or any of the Material Subsidiaries or its or their property of a character required to be disclosed which is identified in the Registration Statement which is not adequately disclosed in Officers' Certificate as being material to the Prospectus, and there is no franchise, contract or other document business of a character required to be described in the Registration Statement or ProspectusCompany, or to be filed as an exhibit thereto, which is not described (B) conflict with or filed as required; and result in a breach or violation of the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, charter documents or proceedings discussed therein, are accurate and fair summaries by-laws of such legal matters, agreements, documents the Company or proceedingsany of its Material Subsidiaries (other than the Westbrooke Entities);
(vxiv) to such counsel's knowledge, there are no contracts, agreements or understandings between the Registration Statement has become effective Company and any person granting such person the right to require the Company to file a registration statement under the Act; Act with respect to any required filing securities of the ProspectusCompany or to require the Company to include such securities for sale with the sale of the Securities hereunder; and
(xv) (A) each document, and any supplements theretoif any, filed pursuant to Rule 424(b) has been made the Exchange Act and incorporated by reference in the manner Final Prospectus (except for financial statements and within other financial data included therein as to which no opinion need be expressed) complied when so filed as to form with the time period required by Rule 424(b); to the knowledge of such counselExchange Act in all material respects, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened and (B) the Registration Statement and the Final Prospectus and any supplement or amendment thereto (other than except for the financial statements and other financial data included therein as to which no opinion need be expressed) comply as to form with the Act in all material respects, (C) nothing has come to the attention of such counsel which causes them to believe that at March 21, 2002 the Registration Statement and statistical information contained therein, the Basic Prospectus included therein (except for the financial statements and other financial data as to which such counsel need not express no opinionany belief) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading or and (D) nothing has come to the attention of such counsel which causes them to believe that the Prospectus Final Prospectus, as amended or supplemented, if applicable (except for the financial statements and other financial data, as aforesaid), as of its date and on or the Closing Date included date of such opinion, contained or includes contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each casemisleading. In rendering such opinion, other than the financial statements and other financial and statistical information contained therein, such counsel may rely as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorizedmatters of fact, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale extent they deem proper, on certificates of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets responsible officers of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable and public officials. References to the Company or Final Prospectus in this paragraph (b)(1) include any supplements thereto at the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;Closing Date.
(x2) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the The Company shall have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law requested and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by caused ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ , P.A., its special Florida counsel, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Westbrooke Entities have been duly organized and are validly existing as corporations;
(ii) the Westbrooke Entities are in good standing under the laws of their respective jurisdictions of organization, and are duly qualified to transact business as foreign corporations and are in good standing under the laws of each jurisdiction identified in the Officers' Certificate as being jurisdictions in which any of such entities owns or leases property, maintains or has an office or is engaged in the business of developing real property, building and selling homes, except where the failure to be so qualified would not result in material liability or disability to the Company and its subsidiaries, taken as a whole;
(iii) each of the Westbrooke Entities have the corporate power to own or lease their respective properties and conduct their respective businesses as described in the Final Prospectus;
(iv) assumed all the issued shares of capital stock of each of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was Westbrooke Entities have been duly authorized and validly issued, are fully paid and nonassessable; and all such shares are owned of record by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws Company or a wholly owned subsidiary of the State Company and, to the knowledge of Texas such counsel, free and the State clear of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986any other security interests, as amendedliens, encumbrances or claims; and
(xviv) to the issuance knowledge of such counsel without investigation of court records, no legal or governmental proceedings are pending to which the Westbrooke Entities is a party or to which the property of the Common Stock Westbrooke Entities is subject that are required to be described in connection with the Merger was exempt from Final Prospectus and are not described therein and no such proceedings have been threatened against the registration provisions any of the ActWestbrooke Entities or with respect to any of their respective properties. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware Florida or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (bb)(2) shall also include any supplements thereto at the Closing Date.
(c) The Representatives Selling Stockholders shall have received from requested and caused ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused LLP, counsel for the Selling StockholderStockholders, to have furnished to the Representatives their opinion, opinion dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling StockholderStockholders, the Custody Agreement is valid and binding on the Selling StockholderStockholders and, and the to such counsel's knowledge, each Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the such Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 105(a) of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts (within the meaning of Section 8-501(a) of the UCC) of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such SecuritiesSecurities (for purposes of this opinion, such counsel may assume that when such payment, delivery and crediting occur, The Depository Trust Company or such other securities intermediary will be registered as a "clearing corporation" within the meaning of Section 8-102 of the UCC);
(iii) no consent, approval, authorization or order of any court or governmental agency or body authority is required for the consummation by the any Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the any Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the any Selling Stockholder or the fulfillment of the terms hereof by the any Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the any Selling Stockholder or any of its subsidiaries is a party or bound, which is identified in a certificate signed by the Selling Stockholder (the "Selling Stockholder Certificate") as being material to the Selling Stockholder, or any judgment, order or decree known to such counsel to be applicable to the any Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablco
Appears in 1 contract
Sources: Underwriting Agreement (Standard Pacific 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 and the Selling Stockholder contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be shall 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused furnished to the Representatives the opinion of Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the RepresentativesDate, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and The Company is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedState of Texas, with full corporate power and authority to own or lease, as the case may be, and to operate lease its properties and conduct its business as described in the Final Prospectus, ; and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe each of the Subsidiaries have been duly authorized and validly authorized and issued and issued, are fully paid and nonassessable, non-assessable; and, to such counsel's knowledge, except (A) as otherwise reflected in the Company's financial statements, (B) as described in the Registration Statement or (C) as set forth on Schedule III hereto or as disclosed in such counsel's opinion, (x) the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe each of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries its subsidiary free and clear of any perfected all liens, encumbrances and security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
interests and (iiiy) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or other rights to convert any obligations into or exchange any securities for, shares of capital stock or of or ownership interests in the Company Subsidiaries are outstanding;.
(ivii) The Indenture and the Securities conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(iii) Except as described in the Final Prospectus, to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before holder of any court or governmental agency, authority or body or any arbitrator involving securities of the Company or any other person has the right, contractual or otherwise, which has not been satisfied or effectively waived, to cause the Company to sell or otherwise issue to them, or to permit them to underwrite the sale of, any of the Subsidiaries Securities or its or their property of a character required the right to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract have any Common Stock or other document securities of a character required to be described the Company included in the Registration Statement or Prospectusthe right, as a result of the filing of the Registration Statement, to require registration under the Act of any shares of Common Stock or to be filed as an exhibit theretoother securities of the Company.
(iv) the Indenture has been duly authorized, which is not described or filed as required; executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms and the statements included Securities have been duly authorized and, when executed and authenticated in accordance with the Prospectus under provisions of the headings “Description Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”the Company entitled to the benefits of the Indenture (subject, in each case insofar respect to both the Indenture and the Securities, as such statements summarize legal mattersto enforcement of remedies, agreementsto applicable bankruptcy, documents reorganization, insolvency, fraudulent conveyance or proceedings discussed thereintransfer, are accurate and fair summaries of such legal matters, agreements, documents moratorium or proceedingsother laws affecting creditors' rights generally from time to time in effect);
(v) the The Registration Statement has become effective under the Act; any required filing of the ProspectusAct and, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose with respect thereto have been instituted or are pending or threatened under the Act.
(vi) The Registration Statement, the Final Prospectus and the Registration Statement each amendment or supplement thereto and the Prospectus documents incorporated by reference therein (other than the financial statements and other financial and statistical information contained therein, each as amended to which such counsel need express no opiniondate) comply as to form in all material respects with the applicable requirements of the Act or the Exchange Act, as applicable and the applicable rules thereunder; and such counsel has no reason to believe regulations thereunder (except that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion as to the statistical information contained in the Final Prospectus or financial statements, schedules and other financial information incorporated by reference therein).
(vii) The statements under the captions "Business" and "Description of the Notes" in the Final Prospectus, insofar as such statements constitute a summary of documents referred to therein or matters of law, are accurate summaries and fairly and accurately present the information called for with respect to such documents and matters in all material respects.
(viii) Except as set forth on Schedule III, to such counsel's knowledge, there are no contracts or documents required to be filed as exhibits to the Registration Statement or described in the Registration Statement or the Final Prospectus (excluding any document incorporated therein by reference) which are not so filed or described as required, and such contracts and documents as are summarized in the Registration Statement or the Final Prospectus (excluding any document incorporated therein by reference) are fairly summarized in all material respects.
(ix) Except as set forth on Schedule III, to such counsel's knowledge, there are no material legal proceedings pending or threatened against the Company or any of the Subsidiaries which are of a character required to be disclosed in the Final Prospectus and which has not been properly disclosed therein.
(x) The execution and delivery of the Indenture, the issuance and sale of the Securities and the execution and delivery of this Agreement and the consummation of the transactions herein contemplated do not and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, (a) the Articles of Incorporation or (b) By-laws of the Company, or (c) to such counsel's knowledge, any agreement or instrument filed as an exhibit to the Company's most recent annual report on Form 10-K or any subsequent quarterly report of the Company on Form 10-Q (other than licenses or permits granted by the FCC, on which such counsel need not express any opinion);, or (d) will not contravene any law, rule or regulation of the United States or the State of Texas or the General Corporation Law of the State of Delaware, or, to such counsel's knowledge, any order or decree of any court or governmental agency or instrumentality, except, with respect to clause (c) above, a conflict, breach or default which would not have a materially adverse effect on the business or financial condition of the Company and its subsidiaries taken as a whole.
(vixi) this This Agreement has been duly authorized, executed and delivered by the Company;.
(viixii) No approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body having jurisdiction over the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required necessary in connection with the execution and delivery of this Agreement and the consummation of the transactions herein contemplated herein, (other than as may be required by the NASD or NYSE or as required by State securities and Blue Sky laws as to which such counsel need express no opinion) except such as have been obtained under or made, specifying the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;same.
(ixxiii) neither the issue The Company is not, and sale will not become, as a result of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict withtransactions contemplated by this Agreement, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets and application of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except net proceeds therefor as set forth in or contemplated described in the Prospectus (exclusive of any supplement thereto)Final Prospectus, no holders of securities of the Company have rights required to the registration of such securities register as an investment company under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the 1940 Act. In rendering such opinion, such counsel may rely (A) as to matters involving governed by the application of laws of any jurisdiction states other than the State of Texas or Federal laws on local counsel in such jurisdictions, provided that in each case such counsel shall state that they believe that they and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified Underwriters are justified in relying on such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officialscertificates or other written statements of officers or departments of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company and any Subsidiary. References In addition to the Prospectus in this paragraph (b) matters set forth above, such opinion shall also include a statement to the effect that nothing has come to the attention of such counsel which leads them to believe that the Registration Statement, as of the time it became effective under the Act, the Final Prospectus or any supplements thereto at amendment or supplement thereto, on the date it was filed pursuant to Rule 424(b) and the Registration Statement and the Final Prospectus, or any amendment or supplement thereto, as of the Closing Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (except that such counsel need express no view as to matters pertaining to the statistical information contained in the Final Prospectus or financial statements, schedules and other financial information contained or incorporated by reference in the Final Prospectus). With respect to such statement, such counsel may state that their belief is based upon the procedures set forth therein, but is without independent check and verification.
(c) The Representatives Underwriters shall have received from on the Closing Date the opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ L.L.P.LLP, special FCC counsel to the Company, dated the Closing Date, addressed to the Underwriters as is reasonably acceptable to the Underwriters.
(d) The Representatives shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board Chief Executive Officer or the President and the principal financial or accounting officer of the Company, in their capacity as such, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date Date, and the Company has complied 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 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 Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiariessubsidiaries, 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 Final Prospectus (exclusive of any supplement thereto).
(ef) The Selling Stockholder At the Execution Time and at the Closing Date Ernst & Young LLP shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, letters dated as of the Execution Time and the Closing Date in form and addressed substance satisfactory to the Representatives.
(g) Except as agreed to by Banc of America Securities LLC, subsequent to the effect that:Execution Time, there shall not have been any decrease in the rating of any of the Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purpose of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ih) Prior to the Closing Date the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 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 the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 all obligations of the UCC)Underwriters hereunder may be canceled at, each Underwriter that has purchased such Securities delivered on or at any time prior to, the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had the Representatives. Notice of such Securities credited cancellation shall be given to the securities account Company in writing or accounts by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such UnderwriterCravath, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consentSwaine & ▇▇▇▇▇ LLP, approval, authorization or order of any court or governmental agency or body is required counsel for the consummation by Underwriters, at Worldwide Plaza, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablClosing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Clear Channel 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 and the Selling Stockholder 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 Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM New York City time on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 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 their its opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Annex B hereto. The Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock shall have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by caused ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ , Corporate Vice President-Corporate Development, General Counsel and Secretary of the Company to have furnished to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such Representatives his opinion, such counsel may rely (A) as dated the Closing Date and addressed to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United StatesRepresentatives, to the extent they deem proper and specified effect set forth in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing DateAnnex C hereto.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇ L.L.P.▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the 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.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement date pursuant to Section 3 hereof substantially in the form of Exhibit B hereto.
(e) 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, to the effect that the signers of such certificate have carefully examined the Registration Statementletters, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties dated respectively as of the Company in this Agreement are true and correct on Execution Time and as of the Closing Date with the same effect as if made on the Closing Date Date, in form 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 substance satisfactory to the Closing Date;Representatives, to the effect set forth in Annex D hereto.
(iif) no stop order suspending Subsequent to the effectiveness Execution Time or, if earlier, the dates as of which information is given in the Registration Statement has been issued (exclusive of any amendment thereof) 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 Prospectus (exclusive of any supplement thereto), there has shall not have been no material adverse effect on (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, 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 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) and the Prospectus (exclusive of any supplement thereto).
(eg) The Selling Stockholder Prior to the Closing Date, the Company shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinionsuch further information, dated certificates and documents as the Closing Date and addressed Representatives may reasonably request.
(h) Subsequent to the RepresentativesExecution Time, to there shall not have been any decrease in the effect that:rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) The Securities shall have been included for quotation on the Nasdaq National Market and satisfactory evidence of such action shall have been provided to the Representatives.
(j) At the Execution Time, the Company shall have furnished to the Representatives a letter addressed to the Representatives substantially in the form of Exhibit A hereto from each of the executive officers and directors of the Company and from an authorized officer of each of Advanced Micro Devices, Inc. and Fujitsu Limited.
(k) The closing of the purchase of the (i) senior unsecured notes to be issued and sold by Spansion LLC pursuant to the Purchase Agreement dated the date hereof among Spansion LLC, the Company, as guarantor, and the initial purchasers party thereto and (ii) Class A Common Stock to be issued and sold by the Company pursuant to the Common Stock Underwriting Agreement dated the date hereof between the Company and the underwriters party thereto (the “Common Stock Underwriting Agreement”) shall occur concurrently with the closing described herein. 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 Custody Agreement and Power Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of Attorney have been duly authorized, executed and 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 Selling Stockholderoffice of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Custody Agreement is valid and binding on the Selling StockholderUnderwriters, and the Selling Stockholder has full legal right and authority to sellat ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC)▇▇▇▇▇ ▇▇▇▇, each Underwriter that has purchased such Securities delivered ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablDate.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 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 their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies Tunes Acquisition Corp. and ATX Europe GmbH JAMtv Interactive Services Corporation (“ATX Europe”individually a "Subsidiary" and collectively the "Subsidiaries") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock capital stock of the Company have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by outstanding shares of capital stock of the Company were issued pursuant to valid exemptions from the registration requirements of Section 5 of the Act and in accordance with applicable state securities laws; the Securities have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distributionissuance, on the Nasdaq National Stock Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements caption "Business -- Strategic Relationships" fairly summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedingsthe matters therein described;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or at the date the Registration Statement was last deemed amended, Execution Time the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries its subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiariessubsidiaries, (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 or the Subsidiaries its subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries its subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;; and
(xi) the Merger complied with applicable law and did not require statements contained in the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed Prospectus under the terms captions "Risk Factors -- We depend on the music industry and others for content and we may not be able to attract visitors to our Web sites if we cannot obtain that content," "-- We do not have licenses for a substantial amount of music and associated artwork available on our Web sites, which may subject us to infringement damages and significant license fees or loss of access to that content," "-- We will be required to pay additional statutory royalties for the line broadcast of credit issued by ▇▇▇▇▇▇▇▇▇ music on the Web which may significantly increase our operating costs," "-- We may be unable to protect our trademarks and copyrights which could result in the Company loss of our rights or increased costs" and (iv) assumed all "Business -- Intellectual Property," insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Companysuch legal matters, the Merging Entity and ATX Technologies;
(xiv) the Merger is legalagreements, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Actdocuments or proceedings. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇, ▇▇▇▇▇ L.L.P.& ▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiariessubsidiaries, 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 Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder Company shall have requested and caused , counsel for the Selling Stockholder, Ernst & Young LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives, to confirming that they are independent accountants within the meaning of the Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for the six-month period ended June 30, 1999, and as at June 30, 1999, in accordance with Statement on Auditing Standards No. 71 and stating in effect that:
(i) this Agreement in their opinion the audited financial statements and financial statement schedules included in the Registration Statement and the Custody Agreement Prospectus and Power reported on by them comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed the Act and delivered the related rules and regulations adopted by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderCommission;
(ii) assuming that each Underwriter acquires its interest in on the Securities it has purchased from the Selling Stockholder without notice basis of any adverse claim (within the meaning of Section 8-105 a reading of the UCC)latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, each Underwriter that has purchased such Securities delivered in accordance with standards established under Statement on Auditing Standards No. 71, of the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided hereinunaudited interim financial information for the six-month period ended June 30, 1999, and that has had such Securities credited to the securities account or accounts as at June 30, 1999; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter significance with respect to the comments set forth in such Securitiesletter; a reading of the minutes of the meetings of the stockholders, the board of directors and the committees of the board of directors 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, 1998, 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 20 of the audited financial statements included in the Registration Statement and the Prospectus;
(2) with respect to the period subsequent to June 30, 1999, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term obligations of the Company and its subsidiaries or capital stock of the Company or increases in the stockholders' deficit of the Company or decreases in working capital of the Company and its subsidiaries as compared with the amounts shown on the June 30, 1999 consolidated balance sheet included in the Registration Statement and the Prospectus, or for the period from July 1, 1999 to such specified date there were any decreases, as compared with the corresponding period in the preceding quarter, in advertising revenue or total revenue or any increases in loss from operations or in total or per share amounts of net loss 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 Representatives;
(3) the information included in the Registration Statement and Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information) and Item 402 (Executive Compensation) is not in conformity with the applicable disclosure requirements of Regulation S-K;
(iii) no consentthey have performed certain other specified procedures as a result of which they determined that certain information of an accounting, approval, authorization financial or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablstatistical natur
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder 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 Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedState of Delaware, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus;
(ii) each of GFInet inc., Fenics Software, Inc. and GFI Brokers LLC is duly qualified to do business validly existing as a foreign corporation and is or as a limited liability company in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares State of capital stock of ATX Technologies Delaware, with corporate power and ATX Europe have been duly authority or limited liability company power and validly authorized authority, as the case may be, to own or lease, as the case may be, its properties and issued and are fully paid and nonassessable, and, except conduct its business as otherwise set forth described in the Prospectus; each of GFI Group LLC, all outstanding shares GFI Securities LLC and GFI (HK) Securities LLC is validly subsisting as a limited liability company under the laws the State of capital stock of ATX Technologies New York, with limited liability company power and ATX Europe are owned by authority to own or lease, as the Company either directly or through wholly owned subsidiaries free case may be, its properties and clear of any perfected security interest and, to conduct its business as described in the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbranceProspectus;
(iii) the Company’s authorized equity capitalization is is, as of the Closing Date (giving effect to the transactions occurring on the Closing Date), as set forth in the Prospectussection of the Prospectus entitled “Cash and Capitalization” in the rows title “common stock” and “preferred stock”; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder under this Agreement by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; and the Securities being sold hereunder under this Agreement by the Company Selling Stockholders have been duly and validly authorized and issued and are duly listed, fully paid and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstandingnonassessable;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character which is required by the Act and the rules and regulations thereunder to be described in the Registration Statement or the Prospectus, or to be filed as an exhibit thereto, which is has not been so described or filed as required; and filed;
(v) the statements included in the Prospectus under the headings captions “Our Business-Regulation— U.S. Regulation and Certain Clearing Arrangements,” “Our Business — Our Reorganization,” “Certain Relationships and Related Transactions,” “Description of Capital Stock,” “Description of Certain Relationships and Related Party TransactionsIndebtedness,” “Shares Eligible for Future Sale,” and “Underwriting”, in each case Material United States Federal Income and Estate Tax Considerations for Non-U.S. Holders,” insofar as such statements summarize certain legal mattersmatters and certain provisions of certain agreements or documents, agreements, documents or proceedings discussed therein, are accurate and provide a fair summaries summary of such legal matters, agreements, documents matters and such provisions of such agreements or proceedingsdocuments;
(vvi) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period 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, issued and no proceedings for that purpose have been instituted initiated or threatened are pending;
(vii) the Registration Statement, as of the Effective Date, and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained thereinProspectus, as to which such counsel need express no opinion) of it date, comply as to form in all material respects with the applicable requirements of the Act and the rules and regulations thereunder; and such counsel has no reason to believe , except that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need not express no opinion)any opinion as to the financial statements, notes thereto and schedules included therein or excluded therefrom or other financial, accounting and statistical data included therein or excluded therefrom;
(viviii) this Agreement has been duly authorized, executed and delivered by the Company;
(viiix) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viiix) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required by any Applicable Law (as defined below) in connection with the transactions issue and sale of the Securities by the Company in the manner contemplated hereinby this Agreement, except such as (i) have been obtained under the Act and such as the Exchange Act, (ii) may be required under the securities or blue sky laws of any jurisdiction the various states in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subjectsuch counsel need not express any opinion), or and (iii) any statute, law, rule, regulation, judgment, order or decree applicable to may be required by the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities 2700 series of the Company have rights rules and regulations of the National Association of Securities Dealers, Inc. (the “NASD”) (as to which such counsel need not express any opinion). “Applicable Law” means the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the MergerDelaware General Corporation Law, the Delaware Limited Liability Company properly (A) exchanged all Act, the rules and regulations of the outstanding shares of ATX Technologies’ Series A, Series B, Series C NASD and Series D preferred stock, together with accrued but unpaid dividends those laws and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws regulations of the State of Texas New York and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the those Federal laws and regulations of the United StatesStates of America that in each case, in the experience of such counsel, are customarily recognized to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe apply to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers transactions of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein kind contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablthis Agreement;
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree Representative agrees in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused H▇▇▇▇ & H▇▇▇▇▇▇ L.L.P., U.S. counsel for the Company, and F▇▇▇▇▇▇ M▇▇▇▇▇ Casgrain LLP, Canadian counsel for the Company, to have furnished to the Representative their opinions substantially in the forms set forth in Exhibits D-1 and D-2 hereto, respectively, dated the Closing Date and any settlement date and addressed to the Representative.
(c) The Representative shall have received from C▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇& H▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any settlement date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the 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, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus 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 and any settlement date with the same effect as if made on the Closing Date and any settlement date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateDate and any settlement date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder Company shall have requested and caused , counsel for the Selling Stockholder, PricewaterhouseCoopers LLP to have furnished to the Representatives their opinionRepresentative letters, dated at the Execution Time and at the Closing Date and addressed any settlement date, dated respectively as of the Execution Time and as of the Closing Date and any settlement date, in form and substance satisfactory to the RepresentativesRepresentative, to confirming that it is an independent registered public accounting firm within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and stating in effect that:
(i) this Agreement in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Custody Agreement Final Prospectus and Power reported on by them comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed the Act and delivered the Exchange Act and the respective related rules and regulations adopted by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderCommission;
(ii) assuming that each Underwriter acquires its interest on the basis of carrying out certain specified procedures (but not an examination in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 accordance with generally accepted auditing standards); a reading of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) minutes of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 meetings of the UCCshareholders and directors 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, 2005, nothing came to their attention which caused them to believe that:
(1) may be asserted against such Underwriter with respect to the period subsequent to June 30, 2005, 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 June 30, 2005 consolidated balance sheet included or incorporated by reference in the Registration Statement and the Final Prospectus, except in all instances for changes or decreases set forth in such Securitiesletter, 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;
(2) the information included or incorporated by reference in the Registration Statement and Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data) is not in conformity with the applicable disclosure requirements of Regulation S-K; and
(iii) no consentthey have performed certain other specified procedures as a result of which they determined that certain information of an accounting, approvalfinancial or statistical nature (which is limited to accounting, authorization financial or order statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Final Prospectus and in Exhibit 12.1 of the Registration Statement, including the information set forth under the captions “Prospectus Supplement Summary,” “Risk Factors,” “Dividend Policy” and “Capitalization” in the Final Prospectus, the information included or incorporated by reference in Items 1, 2, 5, 6, 7, 7A and 11 of the Company’s Annual Report on Form 10-K, incorporated by reference in the Registration Statement and the Final Prospectus and agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any court amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or governmental agency decrease specified in the letter or body is required for letters referred to in paragraph (e) of this Section 6 or (ii) any Material Adverse Effect, except as set forth in or contemplated in the consummation by Final Prospectus (exclusive of any supplement thereto) the Selling Stockholder effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the transactions contemplated hereinRepresentative, except such so material and adverse as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection to make it impractical or inadvisable to proceed with the purchase and distribution offering or delivery of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or Registration Statement (exclusive of any amendment thereof) and the fulfillment Final Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date and any settlement date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(h) The Securities shall have been approved for quotation on the Nasdaq National Market and the Toronto Stock Exchange, subject only to official notice of issuance, and satisfactory evidence of such actions shall have been provided to the Representative.
(i) At the Execution Time, the Company shall have furnished to the Representative a letter substantially in the form of Exhibit A to this Agreement from each officer and director of the terms hereof Company addressed to the Representative.
(j) The Underwriters having received duly completed and executed Subscription Agreements from purchasers in the Canadian Jurisdictions by no later than 5:00 p.m. (New York time) on September 23, 2005. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Selling Stockholder will conflict with, result Representative. Notice of such cancellation shall be given to the Company in a breach writing or violation of, by telephone or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel facsimile confirmed in writing. The documents required to be applicable to delivered by this Section 6 shall be delivered at the Selling Stockholder or any office of its subsidiaries of any courtC▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & H▇▇▇▇▇▇▇ LLP, regulatory bodycounsel for the Underwriters, administrative agencyat O▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, governmental body or arbitrator having jurisdiction over ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablClosing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Underwriters' Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Timedate hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and any settlement date pursuant to Section 3 hereofas of the Closing Date, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be 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 Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or threatened; and the Final Prospectus shall have been filed or transmitted for filing with the Commission pursuant to Rule 424 not later than 5:00 p.m., New York City time, on the business day following the date hereof.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPfurnished to the Representatives the opinion of Sidley & Austin, special counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the RepresentativesDate, to the effect that:
(i) each of the Company, ATX Technologies Company and ATX Europe GmbH (“ATX Europe”) the Designated Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate corporation power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe each Designated Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, to the knowledge of such counsel, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe the Designated Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest andinterests, to the knowledge of such counselclaims, after due inquiry, any other security interest, claim, lien liens or encumbranceencumbrances;
(iii) the Company’s authorized capitalization is as set forth in Securities and the Prospectus; the capital stock of the Company conforms Indenture conform in all material respects to the description thereof contained in the Final Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) the Indenture [2: and the Warrant Agreement] has [2: have] been duly authorized, executed and delivered by the Company, and constitute[s a] legal, valid and binding instrument[s] enforceable against the Company in accordance with [1: its] [2: their] terms except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws of general applicability relating to or affecting the enforcement of creditors' rights or by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law); the Indenture has been duly qualified under the Trust Indenture Act; and the Securities have been duly authorized and, when executed and authenticated [2: or countersigned] in accordance with the provisions of the Indenture [2: or the Warrant Agreement, as the case may be,] and the procedures adopted by the Special Committee thereof and delivered to and paid for by the Underwriters pursuant to this Agreement, in the case of the Underwriters' Securities, or by the purchasers thereof pursuant to Delayed Delivery Contracts, in the case of any Contract Securities, [2: or by the purchasers thereof pursuant to the Warrant Agreement, in the case of the Warrant Debt Securities] will constitute legal, valid and binding obligations of the Company except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws of general applicability relating to or affecting the enforcement of creditors' rights or by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and will be entitled to the benefits of the Indenture [2: or the Warrant Agreement, as the case may be];
(v) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the its Designated Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit theretoto the Registration Statement, which is not described or filed as required; and the statements included or incorporated in the Final Prospectus under with respect to any such action, suit, proceeding, franchise, contract or other document fairly summarize the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents matters required to be disclosed or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedingsdescribed;
(vvi) the Registration Statement has and any amendments thereto have become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement Statement, as amended, has been issued, no proceedings for that purpose have been instituted or threatened and threatened; the Registration Statement Statement, the Final Prospectus and the Prospectus each amendment thereof or supplement thereto as of their respective effective or issue dates (other than the financial statements statements, financial data, statistical data and other financial and statistical information contained supporting schedules included or incorporated by reference therein, as to which such counsel need express no opinion) comply complied as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and although such counsel has not independently verified, is not passing upon and assumes no reason responsibility for the accuracy, completeness or fairness of statements contained in the Registration Statement or any amendment thereof or the Final Prospectus or any amendment or supplement thereof, except as noted above, nor has such counsel verified the computation or compilation of financial statements and other financial data, nothing has come to such counsel's attention which causes such counsel to believe that on the Effective Date or the date the Registration Statement was last deemed amendedor any amendment thereof (other than the financial statements, financial data, statistical data and supporting schedules, as to which such counsel need express no belief), at the Registration Statement time it became effective and at the date of this Agreement, contained any 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 Prospectus Final Prospectus, as of its date amended or supplemented (other than the financial statements, financial data, statistical data and on supporting schedules, as to which such counsel need express no belief), at the Closing Date included or Date, includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion)misleading;
(vivii) this Agreement has and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with authorization or order of any court or governmental agency or body body, domestic or foreign, is required in connection with for the consummation of the transactions contemplated herein, herein or in any Delayed Delivery Contracts except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue execution of the Indenture, the issuance and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor contemplated or the fulfillment of the terms hereof, nor the consummation hereof or of the Merger any Delayed Delivery Contracts will conflict with, result in a breach or violation of, or imposition of any lienconstitute a default under, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan indenture or other material agreement or other agreement, obligation, condition, covenant or instrument known to such counsel and to which the Company or the any of its Designated Subsidiaries is a party or bound or to which its or their property is subjectbound, or (iii) any statuteorder, lawdecree, rule, regulation, judgment, order rule or decree regulation known to such counsel to be applicable to the Company or the any of its Designated Subsidiaries of any court, regulatory body, administrative agency, governmental bodybody or arbitrator, arbitrator domestic or other authority foreign, having jurisdiction over the Company or the Subsidiaries or any of its or their propertiesDesignated Subsidiaries;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of outstanding securities of the Company have rights to the registration of such securities under the Registration Statement;; and
(xi) if the Merger complied with applicable law Securities are to be listed on any stock exchange, authorization therefor has been given, subject to official notice of issuance and did not require the consent evidence of satisfactory distribution, or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends has filed a preliminary listing application and all rights associated required supporting documents with respect to the Securities with such shares stock exchange and such counsel has no reason to believe that the Securities will not be authorized for listing, subject to official notice of stock for shares issuance and evidence of Common Stock, (ii) exchanged one share satisfactory distribution. Such counsel may limit its opinion to matters involving the application of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and Illinois or the United States or the General Corporation Law of the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986Delaware and, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇, ▇▇▇▇▇ L.L.P.& ▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Indenture, any Delayed Delivery Contracts, the Registration Statement, the Final Prospectus (together with any supplement thereto) [2: , the Warrant Agreement] and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or Board, the President or any Vice President and by the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Prospectus Indenture [2: , the Warrant Agreement] 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 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 Prospectus (exclusive of any supplement thereto)Final Prospectus, there has been no material adverse effect on change in the condition (financial or otherwiseother), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a wholesubsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto)Final Prospectus.
(e) The Selling Stockholder At the Closing Date, Price Waterhouse shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opiniona letter or letters, dated as of the Closing Date Date, in form and addressed substance satisfactory to the RepresentativesRepresentatives and Price Waterhouse, confirming that they are independent accountants with respect to Tribune Company within the meaning of the Act and the applicable published rules and regulations thereunder, and stating in effect that:
(i) this Agreement in their opinion, the consolidated financial statements (including financial schedules) of the Company and its subsidiaries examined by and reported on by them and included or incorporated by reference in the Registration Statement and the Custody Agreement and Power Final Prospectus comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, Act and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement Exchange Act and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderrelated published rules and regulations thereunder with respect to registration statements on Form S-3;
(ii) assuming that each Underwriter acquires its interest on the basis of procedures of review in accordance with standards established by the American Institute of Certified Public Accountants (but not an audit in accordance with generally accepted auditing standards) consisting of:
(a) reading the minutes of meetings of stockholders and the Board of Directors of the Company as set forth in the Securities it has purchased from minute books through a specified date not more than five business days prior to the Selling Stockholder without notice date of any adverse claim delivery of such letter;
(within b) reading the meaning of Section 8-105 latest available unaudited interim consolidated financial data of the UCC), each Underwriter that has purchased such Securities delivered on Company and its consolidated subsidiaries included or incorporated by reference in the Closing Date to The Depository Trust Registration Statement or the Final Prospectus and the latest unaudited interim financial data made available by the Company or other securities intermediary by and its subsidiaries; and
(c) making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts inquiries of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) certain officials of the UCC) Company who have responsibilities for financial and accounting matters regarding the specific items for which representations are requested below; nothing has come to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 their attention as a result of the UCCforegoing procedures that caused them to believe that:
(1) may the unaudited interim consolidated financial data of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement and the Final Prospectus do not 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 thereunder;
(2) any material modifications should be asserted against such Underwriter made to said unaudited consolidated financial data of the Company and its consolidated subsidiaries for it to be in conformity with generally accepted accounting principles;
(a) 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 by reference in the Registration Statement and the Final Prospectus, at the date of the latest available interim financial data and at a specified date not more than five business days prior to the date of delivery of such Securitiesletter, except as otherwise disclosed in the Final Prospectus or incorporated by reference and except when such data is not prepared by or available from the Company, there was any change in the common stock or long-term debt of the Company and its consolidated subsidiaries or any decreases in consolidated total assets, net current assets (working capital) or stockholders' investment as compared with amounts shown in the latest consolidated balance sheet included or incorporated by reference in the Registration Statement or the Final Prospectus or (b) for the period from the date of the most recent financial statements included or incorporated by reference in the Registration Statement or the Final Prospectus to a specified date not more than five business days prior to delivery of such letter, there were any decreases, as compared with the corresponding period in the preceding year, in consolidated operating revenues, operating profit, income before income taxes or in the total or per-share amounts of net income, except in all instances for changes or decreases which the Registration Statement and the Final Prospectus disclose have occurred or may occur, or as set forth in such letter accompanied by an explanation thereof;
(4) with regard to the Company and its consolidated subsidiaries, the amounts included in any unaudited "capsule" information included or incorporated by reference in the Registration Statement or the Final Prospectus do not agree with the corresponding amounts in the audited or unaudited consolidated financial statements from which such amounts were derived or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliabl
Appears in 1 contract
Sources: Underwriting Agreement (Tribune 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 and the Selling Stockholder Adviser contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and or the Selling Stockholder Adviser of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the total public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the total public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b)497, the Prospectus, and any such supplement, will be 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 order pursuant to Section 8(e) of the 1940 Act shall have been issued and no proceedings for that purpose shall have been instituted or threatened, 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 shall have requested and caused Paul, Hastings, J▇▇▇▇▇▇▇ & W▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to you, as Representatives of the Representativesseveral Underwriters, to the effect that:
(i) each Based solely on a review of good standing certificates of the CompanySecretary of State of California and the State Department of Assessments and Taxation of Maryland, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and Company is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualificationjurisdiction;
(ii) The Company is duly registered with the Commission under the 1940 Act as a closed-end, non-diversified management investment company, and all required action has been taken by the outstanding shares Company under the Acts and the Rules and Regulations in connection with the issuance and sale of capital stock the Securities to make the public offering and consummate the sale of ATX Technologies the Securities as contemplated by this Agreement; the provisions of the Charter and ATX Europe have the Bylaws of the Company comply as to form in all material respects with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and the Company has not received any notice from the Commission pursuant to Section 8(e) of the 1940 Act with respect to the 1940 Act Notification or the Registration Statement;
(iii) This Agreement has been duly authorized, executed and validly authorized delivered by the Company and issued complies with the provisions of the 1940 Act and are fully paid the 1940 Act Rules and nonassessableRegulations applicable to the Company;
(iv) Each of the Company Agreements has been duly authorized, andexecuted and delivered by the Company; each the Company Agreements comply in all material respects with all applicable provisions of the Acts, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations; and each of the Company Agreements constitutes the valid and legally binding agreements of the Company, enforceable against the Company in accordance with their terms, except as otherwise set forth rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Company’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles, regardless whether enforcement is considered in a proceeding in equity or at law;
(v) Neither the Prospectusissuance and sale of the Securities, all outstanding shares the execution, delivery or performance of capital stock this Agreement or any of ATX Technologies and ATX Europe are owned the Company Agreements by the Company, nor the consummation by the Company either directly of the transactions herein or through wholly owned subsidiaries free and clear therein contemplated or the adoption of the Company’s Dividend Reinvestment Plan (i) to our knowledge, conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any agreement, indenture, lease or other instrument to which the Company is a party or by which it or any of its properties may be bound or (ii) violates or will violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Company or any of its properties or (iii) to our knowledge, will result in the creation or imposition of any perfected security interest andmaterial lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Company is subject;
(vi) To the knowledge of such counsel, after due inquirythere is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or its property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there are no agreements, contracts, indentures, leases or other security interestinstruments that are required to be described in the Registration Statement or Prospectus, claimor to be filed as an exhibit thereto, lien which is not described or encumbrancefiled as required by the Acts or the Rules and Regulations; and the statements included in the Prospectus under the headings “Tax Matters” and “Description of Capital Stock” insofar as they purport to constitute summaries of legal matters, agreements, documents or proceedings discussed therein, accurately and fairly summarize such legal matters, agreements, documents or proceedings described therein in all material prospects;
(iiivii) No consent, approval, authorization, filing with or order of any federal or California governmental agency or body or supervisory authority, or to our knowledge, any California, Maryland, or United States federal court, is required in connection with the Company’s authorized capitalization is as set forth transactions contemplated herein or in the Prospectus; Company Agreements, other than (a) those that have been made or obtained under the capital stock Acts, (b) those under state securities or blue sky laws of any jurisdiction in connection with the purchase and distribution of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant in the manner contemplated in this Agreement and in the Prospectus (as to this Agreementwhich such counsel expresses no opinion), will be fully paid (c) any necessary approval of the Corporate Financing Department of NASD Regulation, Inc. (as to which such counsel expresses no opinion), and nonassessable; the (d) such other approvals (specified in such opinion) as have been obtained;
(viii) The Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distributionissuance, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except NYSE;
(ix) Except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(ivx) No holders of securities of the Company have rights to the knowledge registration of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in securities under the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as requiredStatement; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;and
(vxi) the The Registration Statement has become effective under the Act1933 Act (which opinion is based solely on telephonic advice received by such counsel from the Commission); any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has 497 have been made in the manner and within the time period required by Rule 424(b)497; to the knowledge of such counsel, based solely on telephonic advice received by such counsel from the Commission, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) appear on their face to comply as to form in all material respects with the applicable requirements of the Act Acts and the rules thereunder; Rules and Regulations. Such counsel shall also state that, although such counsel has not independently verified and is not passing upon and does not assume responsibility, explicitly or implicitly, for the accuracy, completeness or fairness of the statements contained in the Registration Statement or Prospectus (except as to the extent expressly stated in the opinion of such counsel), such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, amended the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in . In rendering such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplatedPaul, nor the fulfillment of the terms hereofHastings, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇J▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely & W▇▇▇▇▇ LLP (A) may state that they express no opinion as to matters involving the application of laws of any jurisdiction other than the State laws of Texas and the State of Delaware or California and the Federal federal laws of the United StatesStates of America, (B) may rely as to matters involving the extent they deem proper and specified in such opinion, laws of the State of Maryland upon the opinion of other counsel V▇▇▇▇▇▇ LLP referred to in paragraph (c) of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters this Section 7 and (BC) may rely, as to matters of fact, upon the representations and warranties made by the Company and the Adviser herein and on certificates and written statements of officers and employees of and accountants for the Company and the Adviser and of public officials. Except as otherwise specifically provided herein, when giving their opinions to their “knowledge”, Paul, Hastings, J▇▇▇▇▇▇▇ & W▇▇▇▇▇ LLP has relied solely upon an inquiry of the extent they deem properattorneys of that firm who have worked on matters for the Company, on certificates or written statements of responsible officers of the Company and public officials. References and, where appropriate, a review of the Registration Statement, Prospectus, exhibits to the Prospectus in this paragraph (b) shall also include any supplements thereto at Registration Statement, the Closing DateCharter and Bylaws of the Company and a review of the minute books of the Company and have made no other investigation or inquiry.
(c) The Representatives You shall have received from on the Closing Date an opinion of V▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P.LLP, special Maryland counsel for to the Underwriters, such opinion or opinionsCompany, dated the Closing Date and addressed to the Representativesyou, with respect to the issuance and sale as Representatives of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representativesseveral Underwriters, to the effect that:
(i) this Agreement The Company is a corporation duly incorporated and existing under and by virtue of the Custody Agreement laws of the State of Maryland and Power is in good standing with the State Department of Attorney have been duly authorized, executed Assessments and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderTaxation of Maryland;
(ii) assuming that each Underwriter acquires The Company has corporate power to own its interest properties and assets and conduct its business as described in the Securities it has purchased from Prospectus under the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securitiescaption “K▇▇▇▇ ▇▇▇▇▇▇▇▇ MLP Investment Company”;
(iii) no consentThe Company has the authority to issue the number of shares of Common Stock set forth in the Prospectus under the caption “Description of Capital Stock - Capital Stock” and the Company has the number of authorized shares of stock set forth in the Prospectus under the caption “Capitalization;” the authorized stock of the Company conforms in all material respects as to legal matters to the description thereof contained in the Prospectus under the heading “Description of Capital Stock;” the shares of Common Stock issued and outstanding as of the date hereof (immediately prior to the issuance of the Securities) have been duly authorized and validly issued and are fully paid and nonassessable; the sale and issuance of the Securities have been duly authorized and, approvalwhen issued and delivered to and paid for by the Underwriters in accordance with this Agreement and the resolutions of the Board of Directors of the Company, authorization the Securities will be validly issued, fully paid and nonassessable; the form of certificate representing the Securities complies in all material respects with the applicable statutory requirements of the Maryland General Corporation Law (the “MGCL”) and with any applicable requirements of the Charter (the “Charter”) of the Company and the Bylaws (the “Bylaws”) of the Company; and, the Securities are not subject to preemptive or order other similar rights under the MGCL, the Charter or the Bylaws;
(iv) The Company has corporate power to execute and deliver this Agreement and the Company Agreements and perform the obligations thereunder and each of any court or governmental agency or body this Agreement and the Company Agreements has been duly and validly authorized, executed and, so far as is required for known to counsel, delivered by the Company;
(v) The execution and delivery of this Agreement and the consummation by the Selling Stockholder of the transactions contemplated hereinhereby will not conflict with or constitute a breach of the Charter or the Bylaws, except such or any Maryland law or regulation, or, so far as may have been obtained under the Act and such as may be required under the blue sky laws is known to counsel, any order of any jurisdiction Maryland governmental authority (other than any law, regulation or order in connection with the purchase and distribution securities laws of the Securities by the Underwriters and such other approvals (specified in such opinion) State of Maryland, as have been obtainedto which no opinion is hereby expressed); and
(ivvi) neither The statements in the sale Prospectus under the caption “Description of the Securities being sold by the Selling Stockholder nor the consummation Capital Stock” and “Risk Factors – Anti-Takeover Provisions,” insofar as such statements purport to summarize certain provisions of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any Maryland law or the charter Charter or By-laws Bylaws, such statements constitute a fair summary of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel provisions and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiariesare accurate in all material respects. In rendering such opinion, such counsel V▇▇▇▇▇▇ LLP may rely (A) rely, as to matters involving of fact, upon the application representations and warranties made by the Company and the Adviser herein and on certificates and written statements of officers and employees of and accountants for the Company and the Adviser and of public officials. Except as otherwise specifically provided herein, when giving their opinions to their “knowledge”, V▇▇▇▇▇▇ LLP has relied solely upon an inquiry of the attorneys of that firm who have worked on matters for the Company, on certificates or written statements of officers of the Company and, where appropriate, a review of the Registration Statement, Prospectus, exhibits to the Registration Statement, the Charter and Bylaws of the Company and have made no other investigation or inquiry.
(d) You shall have received on the Closing Date an opinion of D▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq., General Counsel for the Adviser, dated the Closing Date and addressed to you, as Representatives of the several Underwriters, to the effect that:
(i) The Adviser has been duly organized and is validly existing as a limited partnership in good standing under the laws of any jurisdiction other than the State of Texas California, with partnership power and authority to own, lease and operate its properties and assets and to conduct its business as described in the Registration Statement and in the Prospectus, and is duly qualified to do business as a foreign limited partnership and is in good standing under the laws of each jurisdiction which requires such qualification; and to my knowledge, KAEFTX, L.P., the subsidiary of the Adviser, is a limited partnership duly organized and validly existing in good standing under the laws of the State of Delaware Texas, with full partnership power and authority to own, lease and operate its properties and assets;
(ii) The Adviser is duly registered as an investment adviser under the Advisers Act and the Advisers Act Rules and Regulations and, is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the Federal laws of 1940 Act Rules and Regulations, from acting under the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablAdvisory Agreement a
Appears in 1 contract
Sources: Underwriting Agreement (Kayne Anderson MLP Investment 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 and the Selling Stockholder Adviser contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and or the Selling Stockholder Adviser of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the total public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the total public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b)497, the Prospectus, and any such supplement, will be 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 order pursuant to Section 8(e) of the 1940 Act shall have been issued and no proceedings for that purpose shall have been instituted or threatened, 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 shall have requested and caused Paul, Hastings, J▇▇▇▇▇▇▇ & W▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to you, as Representatives of the Representativesseveral Underwriters, to the effect that:
(i) each Based solely on a review of good standing certificates of the CompanySecretary of State of California and the State Department of Assessments and Taxation of Maryland, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and Company is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualificationjurisdiction;
(ii) The Company is duly registered with the Commission under the 1940 Act as a closed-end, non-diversified management investment company, and all required action has been taken by the outstanding shares Company under the Acts and the Rules and Regulations in connection with the issuance and sale of capital stock the Securities to make the public offering and consummate the sale of ATX Technologies the Securities as contemplated by this Agreement; the provisions of the Charter and ATX Europe have the Bylaws of the Company comply as to form in all material respects with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and the Company has not received any notice from the Commission pursuant to Section 8(e) of the 1940 Act with respect to the 1940 Act Notification or the Registration Statement;
(iii) This Agreement has been duly authorized, executed and validly authorized delivered by the Company and issued complies with the provisions of the 1940 Act and are fully paid the 1940 Act Rules and nonassessableRegulations applicable to the Company;
(iv) Each of the Company Agreements has been duly authorized, andexecuted and delivered by the Company; each the Company Agreements comply in all material respects with all applicable provisions of the Acts, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations; and each of the Company Agreements constitutes the valid and legally binding agreements of the Company, enforceable against the Company in accordance with their terms, except as otherwise set forth rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Company’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles, regardless whether enforcement is considered in a proceeding in equity or at law;
(v) Neither the Prospectusissuance and sale of the Securities, all outstanding shares the execution, delivery or performance of capital stock this Agreement or any of ATX Technologies and ATX Europe are owned the Company Agreements by the Company, nor the consummation by the Company either directly of the transactions herein or through wholly owned subsidiaries free and clear therein contemplated or the adoption of the Company’s Dividend Reinvestment Plan (i) to our knowledge, conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any agreement, indenture, lease or other instrument to which the Company is a party or by which it or any of its properties may be bound or (ii) violates or will violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Company or any of its properties or (iii) to our knowledge, will result in the creation or imposition of any perfected security interest andmaterial lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Company is subject;
(vi) To the knowledge of such counsel, after due inquirythere is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or its property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there are no agreements, contracts, indentures, leases or other security interestinstruments that are required to be described in the Registration Statement or Prospectus, claimor to be filed as an exhibit thereto, lien which is not described or encumbrancefiled as required by the Acts or the Rules and Regulations; and the statements included in the Prospectus under the headings “Tax Matters” and “Description of Capital Stock” insofar as they purport to constitute summaries of legal matters, agreements, documents or proceedings discussed therein, accurately and fairly summarize such legal matters, agreements, documents or proceedings described therein in all material prospects;
(iiivii) No consent, approval, authorization, filing with or order of any federal or California governmental agency or body or supervisory authority, or to our knowledge, any California, Maryland, or United States federal court, is required in connection with the Company’s authorized capitalization is as set forth transactions contemplated herein or in the Prospectus; Company Agreements, other than (a) those that have been made or obtained under the capital stock Acts, (b) those under state securities or blue sky laws of any jurisdiction in connection with the purchase and distribution of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant in the manner contemplated in this Agreement and in the Prospectus (as to this Agreementwhich such counsel expresses no opinion), will be fully paid (c) any necessary approval of the Corporate Financing Department of NASD Regulation, Inc. (as to which such counsel expresses no opinion), and nonassessable; the (d) such other approvals (specified in such opinion) as have been obtained;
(viii) The Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distributionissuance, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except NYSE;
(ix) Except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(ivx) No holders of securities of the Company have rights to the knowledge registration of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in securities under the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as requiredStatement; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;and
(vxi) the The Registration Statement has become effective under the Act1933 Act (which opinion is based solely on telephonic advice received by such counsel from the Commission); any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has 497 have been made in the manner and within the time period required by Rule 424(b)497; to the knowledge of such counsel, based solely on telephonic advice received by such counsel from the Commission, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) appear on their face to comply as to form in all material respects with the applicable requirements of the Act Acts and the rules thereunder; Rules and Regulations. Such counsel shall also state that, although such counsel has not independently verified and is not passing upon and does not assume responsibility, explicitly or implicitly, for the accuracy, completeness or fairness of the statements contained in the Registration Statement or Prospectus (except as to the extent expressly stated in the opinion of such counsel), such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, amended the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in . In rendering such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplatedPaul, nor the fulfillment of the terms hereofHastings, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇J▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely & W▇▇▇▇▇ LLP (A) may state that they express no opinion as to matters involving the application of laws of any jurisdiction other than the State laws of Texas and the State of Delaware or California and the Federal federal laws of the United StatesStates of America, (B) may rely as to matters involving the extent they deem proper and specified in such opinion, laws of the State of Maryland upon the opinion of other counsel V▇▇▇▇▇▇ LLP referred to in paragraph (c) of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters this Section 7 and (BC) may rely, as to matters of fact, upon the representations and warranties made by the Company and the Adviser herein and on certificates and written statements of officers and employees of and accountants for the Company and the Adviser and of public officials. Except as otherwise specifically provided herein, when giving their opinions to their “knowledge”, Paul, Hastings, J▇▇▇▇▇▇▇ & W▇▇▇▇▇ LLP has relied solely upon an inquiry of the extent they deem properattorneys of that firm who have worked on matters for the Company, on certificates or written statements of responsible officers of the Company and public officials. References and, where appropriate, a review of the Registration Statement, Prospectus, exhibits to the Prospectus in this paragraph (b) shall also include any supplements thereto at Registration Statement, the Closing DateCharter and Bylaws of the Company and a review of the minute books of the Company and have made no other investigation or inquiry.
(c) The Representatives You shall have received from on the Closing Date an opinion of V▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P.LLP, special Maryland counsel for to the Underwriters, such opinion or opinionsCompany, dated the Closing Date and addressed to the Representativesyou, with respect to the issuance and sale as Representatives of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representativesseveral Underwriters, to the effect that:
(i) this Agreement The Company is a corporation duly incorporated and existing under and by virtue of the Custody Agreement laws of the State of Maryland and Power is in good standing with the State Department of Attorney have been duly authorized, executed Assessments and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderTaxation of Maryland;
(ii) assuming that each Underwriter acquires The Company has corporate power to own its interest properties or assets and conduct its business as described in the Securities it has purchased from Prospectus under the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securitiescaption “K▇▇▇▇ ▇▇▇▇▇▇▇▇ Energy Total Return Fund”;
(iii) no consentThe Company has the authority to issue the number of shares of Common Stock set forth in the Prospectus under the caption “Description of Capital Stock - Capital Stock;” the authorized stock of the Company conforms in all material respects as to legal matters to the description thereof contained in the Prospectus under the heading “Description of Capital Stock;” the shares of Common Stock issued and outstanding as of the date hereof (immediately prior to the issuance of the Securities) have been duly authorized and validly issued and are fully paid and nonassessable; the sale and issuance of the Securities have been duly authorized and, approvalwhen issued and delivered to and paid for by the Underwriters in accordance with this Agreement and the resolutions of the Board of Directors of the Company, authorization the Securities will be validly issued, fully paid and nonassessable; the form of certificate representing the Securities complies in all material respects with the applicable statutory requirements of the Maryland General Corporation Law (the “MGCL”) and with any applicable requirements of the Charter (the “Charter”) of the Company and the Bylaws (the “Bylaws”) of the Company; and, the Securities are not subject to preemptive or order other similar rights under the MGCL, the Charter or the Bylaws;
(iv) The Company has corporate power to execute and deliver this Agreement and the Company Agreements and perform the obligations thereunder and each of any court or governmental agency or body this Agreement and the Company Agreements has been duly and validly authorized, executed and, so far as is required for known to counsel, delivered by the Company;
(v) The execution and delivery of this Agreement and the consummation by the Selling Stockholder of the transactions contemplated hereinhereby will not conflict with or constitute a breach of the Charter or the Bylaws, except such or any Maryland law or regulation, or, so far as may have been obtained under the Act and such as may be required under the blue sky laws is known to counsel, any order of any jurisdiction Maryland governmental authority (other than any law, regulation or order in connection with the purchase and distribution securities laws of the Securities by the Underwriters and such other approvals (specified in such opinion) State of Maryland, as have been obtainedto which no opinion is hereby expressed); and
(ivvi) neither The statements in the sale Prospectus under the caption “Description of the Securities being sold by the Selling Stockholder nor the consummation Capital Stock” and “Risk Factors — Anti-Takeover Provisions,” insofar as such statements purport to summarize certain provisions of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any Maryland law or the charter Charter or By-laws Bylaws, such statements constitute a fair summary of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel provisions and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiariesare accurate in all material respects. In rendering such opinion, such counsel V▇▇▇▇▇▇ LLP may rely (A) rely, as to matters involving of fact, upon the application representations and warranties made by the Company and the Adviser herein and on certificates and written statements of officers and employees of and accountants for the Company and the Adviser and of public officials. Except as otherwise specifically provided herein, when giving their opinions to their “knowledge”, V▇▇▇▇▇▇ LLP has relied solely upon an inquiry of the attorneys of that firm who have worked on matters for the Company, on certificates or written statements of officers of the Company and, where appropriate, a review of the Registration Statement, Prospectus, exhibits to the Registration Statement, the Charter and Bylaws of the Company and have made no other investigation or inquiry.
(d) You shall have received on the Closing Date an opinion of D▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq., General Counsel for the Adviser, dated the Closing Date and addressed to you, as Representatives of the several Underwriters, to the effect that:
(i) The Adviser has been duly organized and is validly existing as a limited partnership in good standing under the laws of any jurisdiction other than the State of Texas California, with partnership power and authority to own, lease and operate its properties or assets and to conduct its business as described in the Registration Statement and in the Prospectus, and is duly qualified to do business as a foreign limited partnership and is in good standing under the laws of each jurisdiction which requires such qualification; and to my knowledge, KAEFTX, L.P., the subsidiary of the Adviser, is a limited partnership duly organized and validly existing in good standing under the laws of the State of Delaware Texas, with full partnership power and authority to own, lease and operate its properties or assets;
(ii) The Adviser is duly registered as an investment adviser under the Advisers Act and the Advisers Act Rules and Regulations and, is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the Federal laws of 1940 Act Rules and Regulations, from acting under the United StatesAdvisory Agreement as contemplated by the Prospectus;
(iii) The Adviser has full partnership power and authority to enter into this Agreement, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablth
Appears in 1 contract
Sources: Underwriting Agreement (Kayne Anderson Energy 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, pursuant to the applicable Terms Agreement, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused furnished to the Representatives the opinion of ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ LLP& Company, Cayman Islands counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the RepresentativesDate, to the effect that:
(i) each Each of the Company, ATX Technologies Company and ATX Europe GmbH its subsidiaries that are incorporated under the laws of the Cayman Islands (“ATX Europe”individually a "Cayman Subsidiary" and collectively the "Cayman Subsidiaries") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedCayman Islands, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all All the outstanding shares of capital stock of ATX Technologies and ATX Europe each Cayman Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe the Cayman Subsidiaries are owned owned, directly or indirectly, by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interestinterests, claimclaims, lien liens or encumbranceencumbrances;
(iii) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the The outstanding shares of Common Stock Ordinary Shares have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient formpaid; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth and the liability of a shareholder in respect of such Securities is limited to the Prospectus, no options, warrants or other rights amount that the shareholder has agreed to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in pay for such Securities and the Company are outstandingcannot call for additional sums to be paid by the shareholders in respect of such Shares;
(iv) If any of the Securities being sold pursuant to the applicable Terms Agreement include Preferred Shares and/or Depositary Shares, such Securities or Underlying Securities have been duly authorized by the Company for issuance and sale pursuant to the Underwriting Agreement and the applicable Terms Agreement. The Preferred Shares, when issued and delivered by the Company pursuant to the terms of the Underwriting Agreement and the applicable Terms Agreement against payment of the consideration specified for the Preferred Shares or for the related Depositary Shares in the applicable Terms Agreement, will be validly issued, fully paid and non-assessable and will not be subject to preemptive or other similar rights of any security holder of the Company. In addition, upon deposit by the Company of any Preferred Shares represented by Depositary Shares with the applicable Depositary and the execution and delivery of such Depositary of the Depositary Receipts evidencing such Depositary Shares, in each case pursuant to the applicable Depositary Agreement, such Depositary Shares will represent legal and valid interests in such Preferred Shares. No holder of such Preferred Shares or Depositary Receipts evidencing such Depositary Shares is or will be subject to personal liability by reason of being such a holder. The form of certificate used to evidence the Preferred or Depositary Receipts evidencing Depositary Shares is in due and proper form and complies with the applicable statutory requirements, with any applicable requirements of the charter of by-laws of the Company and with the requirements of the American Stock Exchange. The applicable Certificate of Designations is in full force and effect;
(v) If any of the Securities being sold pursuant to the applicable Terms Agreement include Depositary Shares, the applicable Deposit Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by general equitable principles. Each registered holder of a Depositary Receipt under the applicable Deposit Agreement will be entitled to the proportional rights, preferences and limitations of the Preferred Shares represented by the Depositary Shares evidenced by such Depositary Receipt and to such other rights as are granted to such registered holder in such Deposit Agreement;
(vi) If any of the Securities being sold pursuant to the applicable Terms Agreement include Debt Securities, such Debt Securities have been authorized by the Company for issuance and sale pursuant to the Underwriting Agreement and the applicable Terms Agreement. The Securities when issued and authenticated in the manner provided for in the applicable Indenture and delivered by the Company pursuant to the terms of the Underwriting Agreement and the applicable Terms agreement against payment of the consideration therefor specified in the applicable Terms Agreement, will be validly and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by general equitable principles, and except further as enforcement thereof may be limited by (A) requirements that a claim with respect to any Debt Securities denominated other than in United States dollars (or a foreign or composite currency judgement in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to the applicable law or (B) governmental authority to limit, delay or prohibit the making of payments outside the United States. Such Securities will be in the -18- form contemplated by, and each registered holder thereof is entitled to the benefits of, the applicable Indenture;
(vii) If any of the Securities being sold pursuant to the applicable Terms Agreement include Debt Securities or if Preferred Shares or Depositary Shares represented by Preferred Shares are, convertible into Debt Securities, each applicable Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by general equitable principles;
(viii) If any of the Securities being sold pursuant to the applicable Terms Agreement include Ordinary Warrants, Preferred Warrants or Purchase Rights, such Securities have been authorized by the Company for issuance and sale pursuant to the Underwriting Agreement and the applicable Terms Agreement. The Securities when issued and authenticated in the manner provided for in the applicable Warrant or Purchase Right Agreement and delivered by the Company pursuant to the terms of the Underwriting Agreement and the applicable Terms agreement against payment of the consideration therefor specified in the applicable Terms Agreement, will be validly and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by general equitable principles;
(x) If any of the Securities being sold pursuant to the applicable Terms Agreement include Ordinary Warrants, Preferred Warrants or Purchase Rights, each applicable Warrant Agreement or Purchase Right Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by general equitable principles;
(xi) If the Underlying Securities related to the Underwritten Securities being sold pursuant to the applicable Terms Agreement include Ordinary Shares, Preferred Shares or Depositary Shares, such Underlying Securities have been duly authorized and reserved for issuance by the Company upon exercise of the Ordinary Warrants, Preferred Warrants or upon conversion of the related Preferred Shares, Depositary Shares, Senior Debt Securities or Subordinated Debt Securities, as applicable. The Underlying Securities, when issued upon such exercise or conversion, as applicable, will be validly issued and fully paid and non-assessable and will not be subject to preemptive or other similar rights of any other security holder of the Company. No holder of the Underlying Securities will be subject to personal liability by reason of being such a holder. In addition, the Underlying Securities, upon deposit by the Company of the Preferred Shares represented thereby with the applicable Depositary and the execution and delivery by such Depositary of the Depositary Receipts evidencing such Underlying Securities, in each case pursuant to the applicable Deposit Agreement, will represent legal and valid interests in such Preferred Shares. If the Underlying Securities related to the Underwritten Securities being sold pursuant to the applicable Terms Agreement include Senior Debt Securities or Subordinated Debt Securities, such Underlying Securities have been duly authorized for issuance by the Company upon the conversion of the related Preferred Shares or Depositary Shares, as the case may be. Such Underlying Securities, when issued and authenticated in the manner provided for in the applicable Indenture and delivered in accordance with the terms of the related Preferred Shares of Depositary Shares, as applicable, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by general equitable principles, and except further as enforcement thereof may be limited by (A) requirements that a claim with respect to any Debt Securities denominated other than in United States dollars (or a foreign or composite currency judgement in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to the applicable law or (B) governmental authority to limit, delay or prohibit the making of payments outside the United States;
(xii) The Securities being sold pursuant to the applicable Terms Agreement and each of the applicable Indenture, Deposit Agreement, Ordinary Warrant Agreement, Preferred Warrant Agreement or Purchase Right Agreement conform, and any Underlying Securities, when issued and delivered in accordance with the terms of the related Underwritten Securities, will conform, in all material respects to the statements relating thereto contained in the Final Prospectus and are in substantially the form filed or incorporated by reference, as the case may be, as an exhibit to the Registration Statement;
(xiii) this Agreement, and the applicable Terms Agreement, have been duly authorized, executed and delivered by the Company and constitutes the legal, valid and binding obligations of the Company;
(xiv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Cayman Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus summaries of legal and regulatory matters and proceedings under the headings “heading "Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements Ordinary Shares" fairly summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedingsthe matters therein described;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ixxv) neither the issue and sale of the Underwritten Securities and any Underlying Securities, nor the consummation of any other of the transactions contemplated herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof or thereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Cayman Subsidiaries pursuant to, (i) the charter or by-laws Memorandum and Articles of Association of the Company or its Subsidiaries, the Cayman Subsidiaries or (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Cayman Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Cayman Subsidiaries or any of its or their respective properties, except where such breach, violation or imposition would not individually or in the aggregate have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole;
(xxvi) except as the Company's agreement to the choice of law provisions set forth in or contemplated Section 14 hereof will be recognized by the courts of the Cayman Islands; the Company can ▇▇▇ and be sued in its own name under the Prospectus (exclusive laws of any supplement thereto)the Cayman Islands, no holders of securities the irrevocable submission of the Company have rights to the registration non-exclusive personal jurisdiction of such securities under a New York Court, the Registration Statement;
(xi) waiver by the Merger complied with applicable law and did not require the consent or approval Company of any third party that was not obtained;
(xii) in connection with objection to the Merger, venue of a proceeding of a New York Court and the agreement of the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C that this Agreement shall be governed by and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated construed in accordance with the laws of the State of Texas New York are legal, valid and binding; and judgment obtained in a New York Court arising out of or in relation to the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) obligations of the Internal Revenue Code Company under this Agreement, not being a sum payable in respect of 1986taxes or other charges of a like nature or a fine or other penalty, as amendedis enforceable against the Company in the courts of the Cayman Islands; and
(xvixvii) the issuance Company is not entitled to any immunity on the basis of the Common Stock sovereignty or otherwise in connection with the Merger was exempt from the registration provisions respect of the Actits obligations under this Agreement and could not successfully interpose any such immunity as a defense in any suit or action brought or maintained in respect of its obligations under this Agreement. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United StatesCayman Islands, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablre
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 EESI and the Selling Stockholder 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 EESI and the Selling Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company EESI and the Selling Stockholder Stockholders of its their obligations hereunder and to the following additional conditions:
(a) If The Registration Statement and any amendment to the Registration Statement has not shall have become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such dateeffective; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company EESI shall have requested and caused ▇furnished to the Representatives an opinion of Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinionEESI, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each EESI is validly existing as a corporation in good standing under the laws of the CompanyState of Delaware, ATX Technologies with full corporate power to own, lease and ATX Europe GmbH operate its properties and to conduct its business as described in the Registration Statement and the Prospectus, and EESI is duly qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or qualify does not have a material adverse effect on the condition (“ATX Europe”financial or other), business, properties, net worth or results of operations of EESI and the Subsidiaries taken as a whole;
(ii) has been duly incorporated Each of the Delaware, New Jersey and Pennsylvania Subsidiaries identified in Schedule V hereto (collectively, the "Schedule V Subsidiaries") is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedof its organization, with full corporate power and authority to own or own, lease, as the case may be, and to operate its properties and to conduct its business as described in the Prospectus, Registration Statement and the Prospectus and is duly qualified to do conduct its business as a foreign corporation and is in good standing under the laws of in each jurisdiction which or place where the nature of its properties or the conduct of its business requires such registration or qualification;
, except where the failure so to register or qualify does not have a material adverse effect on the condition (ii) financial or other), business, properties, net worth or results of operations of EESI and the Subsidiaries taken as a whole; and all the outstanding shares of capital stock of ATX Technologies and ATX Europe each of the Schedule V Subsidiaries have been duly authorized and validly authorized and issued and issued, are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all of the outstanding shares of capital stock of ATX Technologies and ATX Europe each of the subsidiaries are owned of record by the Company either directly or through wholly owned subsidiaries EESI, free and clear of any perfected security interest interest, lien, adverse claim, equity or other encumbrance;
(iii) The authorized and actual outstanding capital stock of EESI at March 31, 1998 is as set forth under the caption "Capitalization" in the prospectus supplement (dated May 20, 1998); and the authorized capital stock of EESI conforms in all material respects as to legal matters to the description thereof contained in the Prospectus under the caption "Description of Capital Stock";
(iv) All the shares of capital stock of EESI outstanding (including the Securities being sold hereunder by the Selling Stockholders) prior to the issuance of the Securities to be issued and sold by EESI hereunder have been duly authorized and validly issued by EESI, and are fully paid and nonassessable by EESI and were not issued in violation of any statutory preemptive or, to such counsel's knowledge, other similar rights of any holder of EESI's capital stock;
(v) The Securities to be issued and sold to the Underwriters by EESI hereunder have been duly authorized and, when issued and delivered to the Underwriters against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable by EESI and will not have been issued in violation of any statutory preemptive or, to the knowledge of such counsel, after due inquiry, other similar rights that entitle or will entitle any other security interest, claim, lien or encumbrance;
(iii) person to acquire any shares upon the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description issuance thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to EESI. To the knowledge of such counsel, no holders of capital stock of EESI are entitled to have such securities registered under the Registration Statement which rights have not been waived;
(vi) The form of certificates for the Securities conforms to the requirements of the Delaware General Corporation Law;
(vii) Any required filing of the Prospectus pursuant to Rule 424(b) has been made in accordance with Rule 424(b);
(viii) EESI has the corporate power and authority to enter into this Agreement and to issue, sell and deliver the Securities to be sold by it to the Underwriters as provided herein. This Agreement has been duly authorized, executed and delivered by EESI and is a valid, legal and binding agreement of EESI, enforceable against EESI in accordance with its terms, except as enforcement of rights to indemnity and contribution hereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that enforceability of EESI's obligations hereunder may be limited by any applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or other laws affecting the creditors' rights generally and by general principles of equity (for purposes of the opinion set forth in this paragraph (viii) only, such counsel may assume that the provisions of Pennsylvania law are the same as those of New York law);
(ix) Neither the issuance, offer, sale or delivery of the Securities by EESI, the execution, delivery or performance of this Agreement by EESI, compliance by EESI with the provisions hereof, nor consummation by EESI of the transactions contemplated hereby conflicts with or constitutes a breach of, or a default under, the certificate or articles of incorporation or by-laws, or other organizational documents, of EESI or of any of the Schedule V Subsidiaries, nor (assuming compliance with all applicable state or foreign securities and Blue Sky laws) will any such action result in any violation of any existing federal, New Jersey or Pennsylvania statute, law, rule, regulation, ruling, judgment, injunction, order or decree applicable to EESI or to the Subsidiaries, or to any of their respective properties, or in any violation of any provision of the Delaware General Corporation Law;
(x) No consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of EESI (except as have been obtained under the Securities Act and the Exchange Act or such as may be required under state or foreign securities or Blue Sky laws governing the purchase and distribution of the Securities) for the valid issuance and sale of the Securities to the Underwriters as contemplated by this Agreement;
(xi) The Registration Statement, at the time it became effective, as of the date hereof and as of the Closing Date, and the Prospectus (except for the financial statements and the notes thereto and the schedules and other financial and statistical data included therein, as to which such counsel need not express any opinion) comply as to form in all material respects with the requirements of the Securities Act; and each of the Incorporated Documents, as amended (except for the financial statements and the notes thereto and the schedules and other financial and statistical data included therein, as to which counsel need not express any opinion) complies as to form in all material respects with the Exchange Act;
(A) To the knowledge of such counsel, other than as described in the Prospectus, there is are no legal or governmental proceedings pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company against EESI or any of the Subsidiaries Subsidiaries, or its to which EESI or any of the Subsidiaries, or any of their property of a character required to be disclosed in the Registration Statement property, is subject which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character are required to be described in the Registration Statement or ProspectusProspectus and (B) there are no agreements, contracts, indentures, leases or other instruments known to such counsel that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit theretoto the Registration Statement or to an Incorporated Document, which is as the case may be, that are not described or filed as required;
(xiii) The statements in the Registration Statement and Prospectus, insofar as they are descriptions of contracts, agreements, instruments or other legal documents, or refer to statements of law or legal conclusions, are accurate summaries thereof and present fairly the information required to be shown in all material respects;
(xiv) Upon delivery of the Securities being sold by EESI to the several Underwriters pursuant to this Agreement and payment therefor as contemplated herein, each Underwriter that has purchased such Securities in good faith and without notice of any adverse claim within the meaning of the Uniform Commercial Code will acquire good title to such Securities, free and clear of any lien, claim, security interest, or other encumbrance, restriction on transfer or other defect in title;
(xv) The Securities being sold by the Selling Stockholders are duly listed, admitted and authorized for trading on the NASDAQ National Market; and the statements included in Securities being sold by EESI, subject to official notice of issuance, have been approved for listing on the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;NASDAQ National Market; and
(vxvi) EESI is not an "investment company" or a person "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended. In addition, such counsel shall state that based on telephonic confirmation from the Commission on May 27, 1998, the Registration Statement has and all post- effective amendments, if any, have become effective under the Act; any required filing of the Prospectus, Securities Act and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, issued and no proceedings for that purpose have been instituted are pending before or threatened contemplated by the Commission. Such counsel shall also state that although such counsel has not undertaken to determine independently, and does not assume any responsibility for, the accuracy or completeness of the statements in the Registration Statement, such counsel has participated in conferences with officers and other representatives of EESI and its Subsidiaries, representatives of the independent public accountants of EESI and representatives of the Underwriters at which the contents of the Registration Statement and the Prospectus (other than including the financial statements Incorporated Documents) and other financial related matters were reviewed and statistical information contained thereindiscussed, as and participated in the preparation of the Registration Statement and the Prospectus and nothing has come to which the attention of such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and that has caused such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, (including the Incorporated Documents) at the time the Registration Statement became effective, or as of the date hereof, or the Prospectus, as of its date and as of the Closing Date (or any settlement date pursuant to Section 3 hereof), as the case may be, contained any an untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or that any amendment or supplement to the Prospectus, as of its respective date, and as of the Closing Date (or any settlement date pursuant to Section 3 hereof), as the case may be, contained any untrue statement of a material fact or omitted to state a material fact necessary in each caseorder to make the statements therein, other than in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no opinion with respect to the financial statements and the notes thereto and the schedules and other financial and statistical information contained thereindata included in the Registration Statement or the Prospectus or any Incorporated Document).
(c) You shall have received on the Closing Date, an opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Associates, P.C. dated the Closing Date and addressed to you, as Representatives of the several Underwriters, to which such counsel need express no opinion);the effect that:
(vii) this Agreement has been duly authorizedEESI and each of the Subsidiaries, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering knowledge of such counsel, has full authority and sale all necessary governmental authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental regulatory officials and bodies (except where the Securities failure so to have any such authorizations, approvals, orders, licenses, certificates, franchises or permits, individually or in the aggregate, would not have a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of EESI and the application of the proceeds thereof Subsidiaries taken as a whole, to own their respective properties and to conduct their respective businesses as now being conducted, as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viiiii) no consentExcept as disclosed in the Prospectus, approvalEESI owns of record, authorizationall the outstanding shares of capital stock of each of the Subsidiaries, filing with or order free and clear of any court lien, adverse claim, security interest, equity, or governmental agency other encumbrance;
(iii) None of EESI or body any Subsidiary is required in connection with violation of its certificate or articles of incorporation or by-laws or other organizational documents or, to the transactions contemplated hereinknowledge of such counsel, in default in the performance or observance of any material obligation, agreement or condition contained in any bond, debenture, note or other evidence of indebtedness, or other material agreement, lease or instrument, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters disclosed in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtainedProspectus;
(ixiv) neither Neither the issue and issuance, offer, sale or delivery of the Securities, the execution, delivery or performance of this Agreement, compliance by EESI with the provisions hereof, nor the consummation of any other by EESI of the transactions herein contemplatedcontemplated hereby constitutes or will constitute a breach of, nor the fulfillment of the terms hereofor a default under, nor the consummation of the Merger or will conflict with, result in a breach or violation of, the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company EESI or of any of the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (ii) to the terms of any material agreement, indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement lease or other agreement, obligation, condition, covenant or instrument to which the Company EESI or any of the Subsidiaries is a party or by which any of them or any of their respective properties is bound which has been described in or filed as an exhibit to the Registration Statement or to an Incorporated Document, or is known to such counsel after due inquiry;
(v) Other than as described or contemplated in the Prospectus, there are no material legal or governmental proceedings pending or, to the knowledge of such counsel, threatened against EESI or any of the Subsidiaries, or to which its EESI or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its their property, is subject, which are required to be described in the Registration Statement or their propertiesProspectus;
(xvi) except as set forth in To the knowledge of such counsel, there are no agreements, contracts, indentures, leases or contemplated other instruments that are required to be described in the Registration Statement or the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights or to be filed as an exhibit to the registration of such securities under Registration Statement or any Incorporated Document that are not described or filed as required, as the Registration Statementcase may be;
(xivii) To the Merger complied with applicable law and did not require knowledge of such counsel, neither EESI nor any of the consent or approval Subsidiaries is in violation of any third party that was not obtained;
(xii) in connection with the Mergerlaw, the Company properly (A) exchanged all ordinance, administrative or governmental rule or regulation applicable to EESI or any of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws Subsidiaries or of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order decree of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any having jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder over EESI or any of its subsidiaries is a party the Subsidiaries, except as disclosed in the Prospectus;
(viii) To the knowledge of such counsel, except as described in the Prospectus, there are no outstanding options, warrants or boundother rights calling for the issuance of, or any judgment, order or decree known to and such counsel to be applicable to the Selling Stockholder or any of its subsidiaries does not know of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablcomm
Appears in 1 contract
Sources: Underwriting Agreement (Eastern Environmental Services Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder 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 and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPRam Wertheim, counsel General Counsel for the Company, to have furnished to the Representatives their his opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies Company and ATX Europe GmbH each of its subsidiaries (other than MBIA Insurance Corporation (“ATX EuropeMBIA Corp.”), which is discussed below) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the business, results of operations or financial condition of the Company and its subsidiaries, taken as a whole;
(ii) (A) MBIA Corp. has been duly incorporated, is validly existing as an insurance company in good standing under the laws of the State of New York and (B) is duly licensed and in good standing to conduct its business in each state in the United States and the District of Columbia;
(iii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the best knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iiiiv) the Company’s authorized capitalization is Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as set forth to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in the Prospectuseffect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law); the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock Securities have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listedconstitute legal, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock binding obligations of the Company are not entitled to preemptive or other rights the benefits of the Indenture; and the Securities and the Indenture conform in all material respects to subscribe for the Securities; and, except as set forth descriptions thereof in the Final Prospectus, no options, warrants as amended or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstandingsupplemented;
(ivv) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries its subsidiaries or its or their property property, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and ;
(vi) the statements included or incorporated by reference in the Final Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future SaleDebt Securities” and “UnderwritingDescription of the Notes”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries in all material respects of such legal matters, agreements, documents or proceedings;
(vvii) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 threatened, and the Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, amended the Registration Statement contained any 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 on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(viviii) this Agreement has been duly authorized, executed and delivered by the Company;
(viiix) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Prospectus, will not be, be an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viiix) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required under United States Federal law or the laws of the State of Connecticut or the State of New York in connection with the transactions contemplated herein, except such as have been obtained under the Act and the Trust Indenture Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Final Prospectus and such other approvals (specified in such opinion) as have been obtained;; and
(ixxi) neither the execution and delivery of the Indenture, the issue and sale of the Securities, Securities nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, or result in a material breach or violation of, of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries its subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiariessubsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or other material instrument known to such counsel to which the Company or the Subsidiaries its subsidiaries is a party or bound or to which its or their property is subject, subject or (iii) any statute, law, rule, regulation, judgment, order or decree known to such counsel under United States Federal law or the laws of the State of Connecticut or the State of New York applicable to the Company or the Subsidiaries its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries its subsidiaries or any of its or their properties;
. In rendering such opinion with respect to the matters covered by subsection (xvii) above (other than the first clause of such subsection), such counsel may state that his opinion and belief are based upon his participation in the preparation of the Registration Statement, the Basic Prospectus, the Preliminary Final Prospectus and the Final Prospectus, any amendment or supplement thereto and review and discussion of the contents thereof, but are without independent check or verification except as set forth in or contemplated in specified. In rendering such opinion, such counsel may rely (A) as to matters involving the Prospectus (exclusive application of laws of any supplement thereto)jurisdiction other than the States of New York or Connecticut or the Federal laws of the United States, no holders to the extent he deems proper and specified in such opinion, upon the opinion of securities other counsel of good standing whom he believes to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent he deems proper, on certificates of responsible officers of the Company have rights and public officials. References to the registration Final Prospectus in this paragraph (b) include any supplements thereto as of such securities under the Registration Statement;Closing Date.
(xic) the Merger complied with applicable law The Company shall have requested and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇caused Debevoise & ▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by LLP, counsel for the Company, to have furnished to the Merging Entity Representatives their opinion, dated the Closing Date and ATX Technologies;
addressed to the Representatives, with respect to the matters covered in subsection (xivi) (with respect to the Merger is legalCompany), effective (ii)(A), (iv), (vi), (vii), (viii) and valid (ix) of paragraph (b) of this Section 6. In rendering such opinion with respect to the matters covered by subsection (vii) of paragraph (b) of this Section 6 (other than the first clause of such subsection), such counsel may state that their opinion and was consummated belief are based upon their participation in accordance with the laws preparation of the State of Texas Registration Statement, the Basic Prospectus, the Preliminary Final Prospectus and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) Final Prospectus, any amendment or supplement thereto and review and discussion of the Internal Revenue Code of 1986contents thereof, but are without independent check or verification except as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Actspecified. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (bc) shall also include any supplements thereto at as of the Closing Date.
(cd) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ L.L.P.& ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus 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 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 Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiariessubsidiaries, 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 Final Prospectus (exclusive of any supplement thereto).
(ef) The Selling Stockholder Company shall have requested and caused , counsel for the Selling Stockholder, PricewaterhouseCoopers LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives, to confirming that they are independent accountants within the effect meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for the three and nine-month periods ended September 30, 2004, and as at September 30, 2004, in accordance with Statement on Auditing Standards No. 100, and stating in effect, except as provided in Schedule I hereto, that:
(i) this Agreement in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Custody Agreement Final Prospectus and Power reported on by them comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed the Act and delivered the Exchange Act and the related rules and regulations adopted by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderCommission;
(ii) assuming that each Underwriter acquires its interest in on the Securities it has purchased from the Selling Stockholder without notice basis of any adverse claim (within the meaning of Section 8-105 a reading of the UCC)latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, each Underwriter that has purchased such Securities delivered in accordance with standards established under Statement on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided hereinAuditing Standards No. 100, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCCunaudited interim financial information for the three and nine-month periods ended September 30, 2004 and as at September 30, 2004; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning which would not necessarily reveal matters of Section 8-105 of the UCC) may be asserted against such Underwriter significance with respect to the comments set forth in such Securities;letter; a reading of the minutes of the meetings of the stockholders, directors and committees of the board of directors of the Company and the Significant 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 September 30, 2004, nothing came to their attention which caused them to believe that:
(iii1) no consent, approval, authorization any unaudited financial statements included or order of any court or governmental agency or body is required for incorporated by reference in the consummation by Registration Statement and the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) Final Prospectus do not comply as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified form in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablall material
Appears in 1 contract
Sources: Underwriting Agreement (Mbia 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 (i) the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Operating Partnership contained herein as of the Execution Time, Time and the Closing Date Date, (ii) the performance by each of the Company and any settlement date pursuant to Section 3 hereofthe Operating Partnership of its respective obligations hereunder, to (iii) the accuracy of the statements of the Company and the Selling Stockholder Operating Partnership made in any certificates pursuant to the provisions hereof, to the performance by the Company hereof and the Selling Stockholder of its obligations hereunder and to (iv) the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, The Prospectus and any such supplement, will be supplements 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(n) hereto, and any other material required to be filed by the Company or the Operating Partnership pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company and the Operating Partnership shall have requested and caused ▇▇▇▇▇▇ & ▇▇ ▇▇▇▇▇▇ LLP, special counsel for the CompanyCompany and the Operating Partnership, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) With your consent, based solely on certificates from public officials, such counsel confirms that the Company is qualified to do business in the following states: Arizona, California, Colorado, Florida, Georgia, Massachusetts and New Jersey;
(ii) With your consent, based solely on certificates from public officials, such counsel confirms that the Operating Partnership is qualified to do business in the following states: Arizona, California, Colorado, Florida, Georgia, Illinois, Massachusetts, New Jersey, Texas and Virginia;
(iii) With your consent, based solely on certificates from public officials, such counsel confirms that each of the Company, ATX Technologies and ATX Europe GmbH entities listed on Schedule V is (“ATX Europe”A) has been duly incorporated and is validly existing as a corporation limited liability company under the Limited Liability Company Act of the State of Delaware, (B) in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power State of Delaware and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly (C) qualified to do business as a foreign corporation and is in good standing the states listed opposite its name, if any, under the laws of each jurisdiction which requires such qualificationheading “Foreign Qualifications”;
(iiiv) all Assuming its due authorization, execution and delivery, the outstanding shares Indenture is the legally valid and binding agreement of capital stock each of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear the Operating Partnership, enforceable against each of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbranceCompany and the Operating Partnership in accordance with its terms;
(iiiv) Assuming their due authorization, the Company’s authorized capitalization is as set forth Securities, when executed, issued and authenticated in accordance with the Prospectus; the capital stock terms of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued Indenture and delivered to and paid for by the Underwriters pursuant to this in accordance with the terms of the Underwriting Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in legally valid and sufficient form; the holders of outstanding shares of capital stock binding obligations of the Company are not entitled to preemptive or other rights to subscribe for Operating Partnership, enforceable against the Securities; and, except as set forth Operating Partnership in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstandingaccordance with their terms;
(ivvi) to Assuming the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any due authorization of the Subsidiaries or its or their property Guarantee, when executed and delivered in accordance with the provisions of a character required the Indenture and when the Securities have been executed, issued and authenticated in accordance with the terms of the Indenture and delivered to be disclosed and paid for by the Underwriters in accordance with the Registration Statement which is not adequately disclosed in terms of this Agreement, the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements Guarantee included in the Prospectus under Indenture, will be the headings “Description legally valid and binding agreement of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”the Company, enforceable against the Company in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedingsaccordance with its terms;
(vvii) the The Registration Statement has become effective under the Act; any required filing . With your consent, based solely on a review of a list of stop orders on the ProspectusCommission’s website at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/litigation/stoporders.shtml on the Closing Date, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, counsel confirms that no stop order suspending the effectiveness of the Registration Statement has been issued, issued under the Act and no proceedings for that purpose therefor have been instituted initiated by the Commission. The Prospectus has been filed in accordance with Rule 424(b) under the Act;
(viii) The Indenture has been duly qualified under the Trust Indenture Act;
(ix) The Registration Statement, as of June 14, 2018, including the information deemed to be a part thereof pursuant to Rule 430B under the Act, and the Prospectus, as of the date of the Prospectus Supplement and as of the date hereof, each appeared on its face to be appropriately responsive in all material respects to the applicable form requirements for registration statements on Form S-3 under the Act; it being understood, however, that such counsel need express no view with respect to any Form T-1 relating to the Indenture, Regulation S-T or threatened and the financial statements, schedules or other financial data, included in, incorporated by reference in, or omitted from, the Registration Statement or the Prospectus. For purposes of this paragraph, such counsel may assume that the statements made in the Registration Statement and the Prospectus are correct and complete;
(other than x) The statements set forth under the financial statements heading “Description of Notes” in the Preliminary Prospectus and other financial the Prospectus, insofar as they purport to summarize certain provisions of the Indenture, the Securities and statistical information contained thereinthe Guarantee, are accurate summaries or descriptions in all material respects;
(xi) With your consent, based solely on a certificate of an officer of the Company and the Operating Partnership as to factual matters, each of the Company and the Operating Partnership is not, and immediately after giving effect to the sale of the Securities in accordance with this Agreement and the application of the proceeds as described in the Prospectus Supplement under the caption “Use of Proceeds,” will not be required to be, registered as an “investment company” within the meaning of the Investment Company Act of 1940, as amended;
(xii) The execution and delivery of this Agreement and the Indenture by the Company and the Operating Partnership and the issuance and sale of the Securities by the Operating Partnership and the Guarantee by the Company to which the Underwriters pursuant to this Agreement on the date hereof do not:
(A) result in the breach of or a default under any of the Specified Agreements (as defined in such counsel need express no counsel’s opinion); or
(B) comply violate any federal, New York or California statute, rule or regulation applicable to the Company, the Operating Partnership or the Significant Subsidiaries (as defined in this Agreement); or
(C) require any consents, approvals or authorizations to form be obtained by the Company, the Operating Partnership or any Significant Subsidiary from, or any registrations, declarations or filings to be made by the Company, the Operating Partnership or any Significant Subsidiary with, any governmental authority under any federal, New York or California statute, rule or regulation applicable to the Company, the Operating Partnership or any Significant Subsidiary, that have not been obtained or made; and
(xiii) Each of the Incorporated Documents (as defined in such counsel’s opinion), as of its respective filing date, appeared on its face to be appropriately responsive in all material respects with to the applicable form requirements for reports on Forms 10-K, 10-Q and 8-K, the applicable schedule requirements for proxy statements under Regulation 14A and the applicable form requirements for registration statements on Form 8-A, as the case may be, under the Exchange Act; it being understood, however, that such counsel expresses no view with respect to Regulation S-T or the financial statements, schedules or other financial data included in, incorporated by reference in, or omitted from such reports, proxy statements and registration statements. For purposes of this paragraph, such counsel may assume that the statements made in the Incorporated Documents are correct and complete. In rendering such opinion, such counsel as to matters of fact, to the extent they deem proper, may rely on certificates of responsible officers of the Act Company, the Operating Partnership and public officials. References to the rules thereunder; and Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date. In addition, such counsel has shall in a separate letter state that no reason facts came to such counsel’s attention that caused such counsel to believe that that:
1. the Registration Statement, at the time it became effective on June 14, 2018, including the Effective Date or the date information deemed to be a part of the Registration Statement was last deemed amendedpursuant to Rule 430B under the Act (together with the Incorporated Documents (as defined in such letter) at that time), the Registration Statement contained any an untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading misleading;
2. the Disclosure Package, when taken together as a whole, as of the Execution Time (together with the Incorporated Documents at that date and the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto) contained an untrue statement of a material fact or that omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
3. the Prospectus, as of the date of the Prospectus Supplement or as of its date and on the Closing Date included (together with the Incorporated Documents at those dates), contained or includes any contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which misleading; it being understood that such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect belief with respect to any Form T-1 relating to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation ofIndenture, or imposition of any lienthe financial statements, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant toschedules, (i) the charter or by-laws of the Company or its Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant financial data included or instrument to which the Company or the Subsidiaries is a party or bound or to which its or their property is subjectincorporated by reference in, or (iii) any statuteomitted from, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;, the Preliminary Prospectus, the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto, the Prospectus or the Incorporated Documents.
(xic) The Company and the Merger complied with applicable law Operating Partnership shall have requested and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the CompanyLLP, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to tax counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorizedCommencing with its taxable year ending December 31, executed and delivered by the Selling Stockholder2004, the Custody Agreement is valid and binding on Company has been organized in conformity with the Selling Stockholderrequirements for qualification as a REIT under the Code, and its proposed method of operation will enable it to meet the Selling Stockholder has full legal right requirements for qualification and authority to sell, transfer and deliver in taxation as a REIT under the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderCode;
(ii) assuming that each Underwriter acquires its interest The statements in Exhibit 99.1 to the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section combined Company’s and Operating Partnership’s current report on Form 8-105 K filed with the Commission on June 14, 2018 under the heading “United States Federal Income Tax Considerations,” insofar as such statements purport to summarize certain provisions of the UCC)statutes or regulations referred to therein, each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;are accurate summaries in all material respects; and
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for The statements in the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained Base Prospectus under the Act heading “Restrictions on Ownership and Transfer,” insofar as such as may be required under the blue sky laws of any jurisdiction statements purport to summarize certain United States federal income tax statutes or regulations referred to therein are accurate summaries in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiariesall material respects. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United Statesfact, to the extent they deem proper proper, on certificates of responsible officers of the Company, the Operating Partnership and specified public officials. References to the Prospectus in such this paragraph (c) shall also include any supplements thereto at the Closing Date.
(d) The Company and the Operating Partnership shall have requested and caused ▇▇▇▇▇▇▇ LLP, Maryland counsel for the Company and the Operating Partnership, to have furnished to the Representatives their opinion, upon dated the opinion Closing Date and addressed to the Representatives, to the effect that:
(i) the Company is a corporation duly incorporated and existing under and by virtue of other counsel the laws of the State of Maryland and is in good standing whom they believe with the State Department of Assessments and Taxation of Maryland (the “SDAT”), with full corporate power to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Prospectus under the caption “Prospectus Supplement Summary — Digital Realty Trust, L.P”;
(ii) Digital Services, Inc. is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT, with full corporate power to own or lease, as the case may be, and to operate its properties and conduct its business;
(iii) the Operating Partnership is a limited partnership duly formed and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT, with full limited partnership power to own or lease, as the case may be, and to operate its properties and to conduct its business as described in the Disclosure Package and the Prospectus under the caption “Prospectus Supplement Summary — Digital Realty Trust, L.P.” The Company is the sole general partner of the Operating Partnership;
(iv) the Indenture has been duly authorized, executed and delivered by each of the Operating Partnership and the Company; the issuance of the Securities has been duly authorized by the Operating Partnership and the Securities, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters under this Agreement, will be reliablvalidly issued; and the Guarantee has been duly authorized, executed and delivered by the Company;
(v) based solely on a certificate executed by an officer of the Company and upon any facts otherwise known to such counsel, and except as set forth in the Prospectus, including the Base Prospectus (including, without limitation, under the caption “Description of the Partnership Agreement of Digital Realty Trust, L.P.—Redemption/Exchange Rights”), no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for common Units or any other ownership interests in the Operating Partnership are outstanding; the terms of the common Units conform in all material respects to the description thereof contained in the Base Prospectus under the caption “Description of the Partnership Agreement of Digital Realty Trust, L.P.;”
(vi) the statements included or incorporated by reference in the Registration Statement, the Base Prospectus and the Prospectus under the headings “Description of the Partnership Agreement of Digital Realty Trust, L.P.,” “Material Provisions of Maryland Law and of the Charter and Bylaws of Digital Realty Trust, Inc.,” “Restrictions on Ownership and Transfer,” “Risk Factors—Risks Related to Our Organizational Structure—Digital Realty Trust, Inc.’s duty to its stockholders may conflict with the interests of Digital Realty Trust, L.P.’s unitholders,” “Risk Factors—Risks Related to Our Organizational Structure—Digital Realty Trust, Inc.’s charter, Digital Realty Trust, L.P.’s partnership agreement and Maryland law contain provisions that may delay, defer or prevent a change of control transaction” and “Risk Factors—Risks Related to Our Organizational Structure—Digital Realty Trust Inc.’s rights and the rights of its stockholders to take action against its directors and officers are limited,” insofar as such statements purport to summarize or describe matters of or legal conclusions relating to Maryland law, the charter or bylaws of the Company, or the Operating Partnership Agreement, are accurate summaries of such matters, legal conclusions, the charter or bylaws of the Company, or the Operating Partnership Agreement in all material respects;
(vii) this Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership; the Operating Partnership Agreement constitutes the valid and binding obligation of each of the Company and the Operating Partnership, enforceable against each of the Company and the Operating Partnership in accordance with its terms;
(viii) no consent, approval or authorization of, filing with or
Appears in 1 contract
Sources: Underwriting Agreement (Digital Realty Trust, L.P.)
Conditions to the Obligations of the Underwriters. The -------------------------------------------------- obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 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 their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedDelaware, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to be qualified would not have a material adverse effect, singly or in the aggregate, on the business, results or operations, financial condition or business affairs of the Company;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Final Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Final Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National MarketAmerican Stock Exchange; the certificates for the Securities are in valid and sufficient form; and the holders of outstanding shares of capital stock of the Company are not entitled to any statutory preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iviii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included or incorporated by reference in the Final Prospectus under the headings “"Description of Capital Stock,” “Certain Relationships " "Risk Factors -- Governmental Regulations and Related Party Transactions,” “Shares Eligible for Future Sale” Permitting" and “Underwriting”, in each case insofar as such statements "Risk Factors -- Impact of Possible New Mining Legislation and Title to Mining Claims" fairly summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedingsthe matters therein described;
(viv) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(viv) this Agreement has been duly authorized, executed and delivered by the Company;
(viivi) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Prospectus, will not be, an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viiivii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Final Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ixviii) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries its subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiariessubsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreementagreement filed as a material contract by the Company under the Exchange Act, obligation, condition, covenant or instrument to which the Company or the Subsidiaries its subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries its subsidiaries or any of its or their properties;
(x) except as set forth in ; and Such counsel may disclaim responsibility for, and state that they have not independently verified, the accuracy, completeness or contemplated fairness of the financial statements, the notes thereto, and the other financial and reserve and operating data included or incorporated by reference in the Registration Statement and Final Prospectus, and have not examined the accounting, financial, reserve or operating records from which such financial statements, notes and data were derived. Such counsel may note that, while certain portions of the Registration Statement and Final Prospectus (exclusive including financial statements, the notes thereto, and other financial and reserve data) have been included on the authority of "experts" (as defined in the Act), such counsel are not such experts with respect to any supplement portion of the Registration Statement and Final Prospectus, including, without limitation, such financial statements, the notes thereto, or other financial or reserve and operating data included or incorporated by reference therein. Subject to the foregoing, such counsel shall state that such counsel has participated in conferences with the officers and other representatives of the Company, representatives of the independent accountants for the Company, representatives of the experts referred to above, and the Purchaser and its counsel, at which the contents of the Registration Statement and Final Prospectus and related matters were discussed and, although such counsel is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in Registration Statement and the Final Prospectus and have not made any independent check or verification thereof, during the course of such participation (relying as to factual matters as to materiality to a large extent upon the statements of officers and other representatives of the Company), no holders facts came to such counsel's attention that caused such counsel to believe that on the Effective Date or at the Execution Time the Registration Statement contained any untrue statement of securities 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 on the Closing Date contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the Company have rights circumstances under which they are made, not misleading (except that such statements by such counsel shall not be deemed to the registration of such securities under the Registration Statement;
(xi) the Merger complied include any statement with applicable law and did not require the consent respect to any financial information or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Actother financial or reserve or operating data). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State States of Delaware or Colorado or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Company shall have furnished to the Purchaser the opinion of Gough, Shanahan, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special regulatory counsel for the Company, dated the Closing Date, to the effect that:
(i) to the best knowledge of such counsel, except where the lack of possession would not have a material adverse effect on the financial condition of the Company, the Company has all necessary consents, approvals, authorizations, orders, registrations, qualifications, licenses and permits of and from all public, regulatory or governmental agencies and bodies to own, lease and operate its properties and conduct its business as now being conducted and as described in the Final Prospectus; and
(ii) the descriptions in the Final Prospectus of statutes and regulations described therein are accurate in all material respects and fairly present the information required to be shown.
(d) The Representatives shall have received from Winston & ▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus 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 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 or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiariessubsidiaries, 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 Final Prospectus (exclusive of any supplement thereto).
(ef) The Selling Stockholder Company shall have requested and caused , counsel for the Selling Stockholder, Pricewaterhouse Coopers LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives, to confirming that they are independent accountants within the effect meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and that they have performed a review of the unaudited interim financial information of the Company for the nine-month period ended September 30, 1998, and as at September 30, 1998, in accordance with Statement on Auditing Standards No. 71, and stating in effect, except as provided in Schedule I hereto, that:
(i) this Agreement in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Custody Agreement Final Prospectus and Power reported on by them comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, Act and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement Exchange Act and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderrelated published rules and regulations;
(ii) assuming that each Underwriter acquires on the basis of a reading of the latest unaudited financial statements made available by the Company and its interest subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 71, of the unaudited interim financial information for the nine-month period ended September 30, 1998, and as at September 30, 1998 incorporated by reference in the Securities it has purchased from Registration Statement and the Selling Stockholder without notice Final Prospectus; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter significance with respect to the comments set forth in such Securitiesletter; a reading of the minutes of the meetings of the stockholders, directors and audit, compensation and marketing 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 December 31, 1997, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the published rules and regulations of the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus;
(iii2) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable respect to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as period subsequent to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablSepte
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder 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 Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused W▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP& R▇▇▇▇▇, Professional Corporation, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) Company has been duly incorporated and is validly an existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedstate of Delaware, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and . The Company is duly qualified to do business as a foreign corporation and is in good standing under in each of the laws of each jurisdiction which requires such qualificationjurisdictions listed on a schedule thereto;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized equity capitalization is as set forth in the Prospectus; Prospectus under the capital “Actual” column under the heading “Capitalization;” the Firm Securities and the Option Securities delivered on the date hereof and all other outstanding shares of the common stock of the Company conforms have been duly authorized and validly issued, are nonassessable and, to such counsel’s knowledge, fully paid and conform in all material respects to the description thereof contained in the Prospectus; Prospectus under the outstanding shares heading “Description of Common Stock have been duly Capital Stock,” and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by stockholders of the Company have been duly and validly authorized, no preemptive rights pursuant to the Company’s Certificate of Incorporation or Bylaws and, when issued and delivered to and paid for by such counsel’s knowledge, the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock stockholders of the Company are do not entitled have contractual, written preemptive rights with respect to preemptive or other rights to subscribe for the Securities; and, except as set forth in Firm Securities and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstandingOption Securities that have not otherwise been waived;
(iviii) to the knowledge of such counsel, there is are no pending or threatened action, suit or proceeding by or before any court legal or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character proceedings required to be disclosed in the Registration Statement or the Prospectus which is are not adequately disclosed described in the Prospectusall material respects therein, and nor are there is no franchise, contract any contracts or other document documents of a character required to be described in filed as an exhibit to the Registration Statement or Prospectus, or to be filed as an exhibit thereto, Prospectus which is are not described or filed as required; and ;
(iv) the statements included in the Prospectus under the headings “Material U.S. Federal Tax Considerations for Non-U.S. Holders of Class A Common Stock”, “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and ”, “Underwriting”” (to the extent of the description of this Agreement), in each case insofar as such statements summarize constitute summaries of legal matters, agreements, documents or proceedings discussed referred to therein, are accurate and fair summaries of fairly present, in all material respects, the information called for with respect to such legal matters, agreements, documents or proceedingsand proceedings and fairly summarize the matters referred to therein in all material respects;
(v) the Registration Statement has become was declared effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued, no proceedings for that purpose have been instituted or threatened are pending or contemplated under the Act;
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not an “investment company” as defined in the Investment Company Act;
(viii) no consent, approval, authorization or order of, or, filing with, any governmental agency or body or court on the part of the company is required in connection with the valid execution and delivery of this Agreement or the offer, sale or issuance of the Firm Securities and the Option Securities by the Company, except such as have been obtained and made under the Act and the Exchange Act and except any consents, approvals, authorization or order of, or filing with, any state or foreign securities regulatory authority for which such counsel need not offer any opinion;
(ix) the execution, delivery and performance of this Agreement and the issuance and sale of the Firm Securities and the Option Securities do not and will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any federal or state law, rule or regulation as currently in effect and customarily applicable in transactions of this nature with respect to the Company; any order known to us of any governmental agency or body or any court having jurisdiction over the Company; or any agreement or instrument filed as an exhibit to the Registration Statement to which the Company is a party or by which the Company is bound, or the Certificate of Incorporation or Bylaws of the Company;
(x) except as disclosed in the Prospectus or otherwise expressly waived in writing, to such counsel’s knowledge, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement; and In addition, such counsel shall indicate that it has participated in the preparation of the Registration Statement and Prospectus involving, among other things, review and discussion of the contents thereof, discussion and inquiries concerning various legal matters and the review of certain corporate records, documents, and proceedings, and participation in conferences with certain officers and other representatives of the Company, including its independent certified public accountants, at which the contents of the Registration Statement and the Prospectus were discussed. The opinion shall indicate that on the basis of such consideration, review and discussion, such counsel has no reason to believe that, as of the Effective Date, the Registration Statement, or any amendment or supplement thereto (other than the financial statements, schedules and the financial and statistical data derived from such financial statements or schedules and other financial and statistical information data contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended), the Registration Statement contained any untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus Prospectus, or any amendment or supplement thereto, as of its date and on the Closing Date included and, if later, the Closing Date for the Option Securities, contained or includes contains any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other schedules and the financial and statistical information data derived from such financial statements or schedules and other financial data contained therein, as to which such counsel need express no opinion);
. In addition, such counsel will confirm that each of the Registration Statement and the Prospectus, and each amendment or supplement thereto (viother than the financial statements and related schedules and the financial and statistical data derived from such financial statements or schedules, as to which such counsel expresses no belief) this Agreement has been duly authorizedas of their respective effective or issue dates, executed and delivered by complied as to form in all material respects with the Company;
(vii) the Company is not and, after giving effect to the offering and sale requirements of the Securities Act and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act Rules and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the ActRegulations. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas California and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives Company shall have received from requested and caused D▇▇▇▇▇▇▇▇▇ D▇▇▇▇▇▇▇ L.L.P.S▇▇▇▇ M▇▇▇▇▇, Canadian counsel for the UnderwritersCompany, such opinion or opinionsto have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, with respect to the issuance effect that:
(i) Recruitsoft (Canada) Corporation Inc. has been duly incorporated and sale is an existing corporation in good standing under the laws of its jurisdiction of incorporation; Recruitsoft (Canada) Corporation Inc. has the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus; Recruitsoft (Canada) Corporation Inc. is duly qualified to do business as a foreign corporation and is in good standing in each of the Securitiesjurisdictions listed on a schedule thereto; and
(ii) all the outstanding shares of capital stock of Recruitsoft (Canada) Corporation Inc. have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Registration StatementProspectus, the Prospectus all outstanding shares of capital stock of Recruitsoft (together with any supplement theretoCanada) and other related matters as the Representatives may reasonably require, and Corporation Inc. are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the Selling Stockholder shall have furnished to knowledge of such counsel such documents as they request for the purpose of enabling them to pass upon such matterscounsel, after due inquiry, any other security interest, claim, lien or encumbrance.
(d) The Company shall have furnished to the Representatives a certificate of the CompanySelling Stockholders [(other than Seneca Investments LLC, signed by the Chairman of the Board or the President Telesystem Ltd. and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement theretotheir respective affiliates), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder ] shall have requested and caused Wilson, Sonsini, G▇▇▇▇▇▇▇ and R▇▇▇▇▇, Professional Corporation, counsel for the Selling StockholderStockholders [(other than Seneca Investments LLC, Telesystem Ltd. and their respective affiliates)], to have furnished to the Representatives their opinion, opinion dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, Stockholders and the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderStockholders;
(ii) assuming that each Underwriter acquires its interest in purchases the Securities it has purchased from the to be sold by each Selling Stockholder for value, in good faith and without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an free of any adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;); and
(iii) to such counsel’s knowledge, no consent, approval, authorization or order of any court or governmental agency or body is required to be obtained or made by the Selling Stockholders for the consummation by the any Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State States of Texas California, New York and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablreliable and who are satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Selling Stockholders and public officials.
(e) Seneca Investments LLC (“Seneca”) shall have requested and caused J▇▇▇▇ Day, counsel for Seneca, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by Seneca and the Custody Agreement is valid and binding on Seneca;
(ii) assuming that each Underwriter purchases the Securities to be sold by Seneca for value, in good faith and without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, free of any adverse claim (within the meaning of Section 8-105 of the UCC); and
(iii) to such counsel’s knowledge, no consent, approval, authorization or order of any court or governmental agency or body is required to be obtained or made by Seneca for the consummation by Seneca of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the States of New York and Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of Seneca and public officials.
(f) Telesystems, Ltd. and its affiliates (collectively “Telesystems”) shall have requested and caused [ ], counsel for Telesystems, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by Telesystems and the Custody Agreement is valid and binding on Telesystems;
(ii) assuming that each Underwriter purchases the Securities to be sold by Telesystems for value, in good faith and without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, free of any adverse claim (within the meaning of Section 8-105 of the UCC); and
(iii) to such counsel’s knowledge, no consent, approval, authorization or order of any court or governmental agency or body is required to be obtained or made by Telesystems for the co
Appears in 1 contract
Sources: Underwriting Agreement (Taleo Corp)
Conditions to the Obligations of the Underwriters. The several 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 the part of the Company and the Selling Stockholder 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 Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company Westpac Parties and the Selling Stockholder Issuer Trustee of its their obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not shall have become effective, or if a post-effective prior amendment is required to be filed under the Execution TimeSecurities Act, unless the Representatives agree in writing to a later timesuch post-effective amendment shall have become effective, the Registration Statement will become effective not later than (i) 6:00 PM 5:00 P.M., New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b)hereof; and no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment shall have been issued be in effect, and no proceedings for that such purpose shall be pending before or threatened by the Commission; the Prospectus shall have been instituted or threatened.filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; and all requests for additional information shall have been complied with to the satisfaction of the Representatives;
(b) The Company the representations and warranties of the Westpac Parties and the Issuer Trustee contained herein are true and correct on and as of the Closing Date as if made on and as of the Closing Date and the representations and warranties of the Westpac Parties in the Basic Documents will be true and correct on the Closing Date; and each Westpac Party and the Issuer Trustee shall have requested complied with all agreements and caused all conditions on its part to be performed or satisfied hereunder and under the Basic Documents at or prior to the Closing Date;
(c) subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate an improvement, in the rating accorded any securities of or guaranteed by each Westpac Party by any "nationally recognized statistical rating organization", as such term is defined for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in the Prospectus there shall not have been any material adverse change or any development involving a prospective material adverse change, in or affecting the general affairs, business, prospects, management, financial position, stockholders' equity or results of operations of each Westpac Party, taken as a whole, otherwise than as set forth or contemplated in the Prospectus, the effect of which in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the Closing Date on the terms and in the manner contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the Closing Date a certificate of an executive officer of each Westpac Party, with specific knowledge about financial matters of such Westpac Party, satisfactory to the Representatives to the effect set forth in subsections (a) through (d) of this Section;
(f) ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇, Australian counsel for Westpac, the Trust Manager and the Servicer, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance satisfactory to the Representatives, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(g) ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇, Australian tax counsel for Westpac, the Trust Manager and the Servicer, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance satisfactory to the Representatives, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(h) on the date hereof and also on the Closing Date, each of PricewaterhouseCoopers and Deloitte & Touche shall have furnished to the Underwriters letters, dated the respective dates of delivery thereof, in form and substance satisfactory to the Underwriters;
(i) the Representatives shall have received on and as of the Closing Date an opinion of ▇▇▇▇▇ & Wood LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and other related matters as the Representatives may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(j) ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇, United States counsel for Westpac, the Issuer Trustee and the Trust Manager, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance satisfactory to the Representatives, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(k) ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇, United States federal income tax counsel for Westpac, the Issuer Trustee and the Trust Manager, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance satisfactory to the Representatives;
(l) Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP▇▇, counsel for the CompanyIssuer Trustee, to shall have furnished to the Representatives their written opinion, dated the Closing Date Date, in form and addressed substance satisfactory to the Representatives, and such counsel shall have received such papers and information as they may reasonably request to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority enable them to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires pass upon such qualificationmatters;
(iim) all ▇▇▇▇▇ & ▇▇▇▇, London, counsel for the outstanding shares of capital stock of ATX Technologies and ATX Europe Note Trustee, shall have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, furnished to the knowledge of Representatives their written opinion, dated the Closing Date, in form and substance satisfactory to the Representatives, and such counsel, after due inquiry, any other security interest, claim, lien or encumbrancecounsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(iiin) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects Counsel to the description thereof contained in Interest Rate Swap Provider and Currency Swap Providers shall have furnished to the Prospectus; Representatives their written opinion and substance satisfactory to the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstandingRepresentatives;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(vo) the Registration Statement has become effective under the Act; Representative shall have received a letter or letters from each counsel delivering any required filing of the Prospectus, and written opinion to any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required Rating Agency in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated transaction described herein which is not otherwise described in this Agreement and in allowing the Prospectus and Representative to rely on such other approvals (specified in such opinion) opinion as have been obtainedif it were addressed to the Representative;
(ixp) neither at the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the MergerClosing Date, the Company properly Class A Notes shall have been rated "AAA" by Standard & Poor's Ratings Services, A Division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (A"Standard and Poor's") exchanged all of the outstanding shares of ATX Technologies’ Series Aand Fitch IBCA, Series B, Series C Inc. ("Fitch") and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued "Aaa" by ▇▇▇▇▇▇▇▇'▇ to Investors Service, Inc. ("Moody's" and together with Standard and Poor's and Fitch, the Company and (iv"Rating Agencies") assumed all of as evidenced by letters from the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the CompanyRating Agencies;
(xiiiq) the Merger was duly authorized execution and delivery by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws all parties thereto of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, Basic Documents on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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;
(iir) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose London Stock Exchange shall have been instituted or, agreed on or prior to the Company’s knowledge, threatenedClosing Date to list the Notes; and
(iiis) since on or prior to the date of Closing Date the most recent financial statements included in Westpac Parties and the Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder Issuer Trustee shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated such further certificates and documents as the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablRepresentatives shall reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (Westpac Securitisation Management Pty LTD)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Purchased Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Timedate hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated therein by reference) and any settlement date pursuant to Section 3 hereofas of the Closing Date, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ furnished to the Representatives the opinion of Faegre & B▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the RepresentativesDate, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) Company has been duly incorporated organized and is validly existing as a corporation and in good standing under the laws of the jurisdiction in which it is chartered or organized, with State of Delaware; the Company has full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) the Company’s authorized capitalization is as set forth in the Final Prospectus; and the Securities conform to the description thereof contained in the Final Prospectus; all of the outstanding issued shares of capital stock of ATX Technologies and ATX Europe the Company have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrancenon-assessable;
(iii) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; if the Securities being sold hereunder by are to be listed on the Company have New York Stock Exchange, authorization therefor has been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for tradinggiven, subject to official notice of issuance and evidence of satisfactory distribution, on or the Nasdaq National Market; the certificates for Company has filed a preliminary listing application and all required supporting documents with respect to the Securities are in valid with the New York Stock Exchange and sufficient form; such counsel has no reason to believe that the holders Securities will not be authorized for listing, subject to official notice of outstanding shares issuance and evidence of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstandingsatisfactory distribution;
(iv) 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 in accordance with its terms (subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles);
(v) this Agreement has been duly authorized, executed and delivered by the Company; each of the Delayed Delivery Contracts, if any, has been duly authorized, executed and delivered by the Company and, assuming such contract has been duly executed and delivered by the purchaser named therein, constitutes a valid and legally binding agreement of the Company enforceable in accordance with its terms (subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles); and any Delayed Delivery Contracts conform to the description thereof in the Prospectus;
(vi) the Purchased Debt Securities constituting Underwriters’ Securities have been duly executed, authenticated, issued and delivered by the Company and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and are enforceable in accordance with their terms (subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles); the Purchased Debt Securities constituting Contract Securities, if any, have been duly authorized by the Company and when executed, authenticated, issued and delivered pursuant to the Indenture and Delayed Delivery Contracts, will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and will be enforceable in accordance with their terms (subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles); and the Purchased Debt Securities and the Indenture conform to the descriptions thereof in the Prospectus;
(vii) the Warrants constituting Underwriters’ Securities, if any, have been duly authorized, executed, countersigned, issued and delivered by the Company and constitute valid and legally binding obligations of the Company enforceable in accordance with their terms (subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles); the Warrants constituting Contract Securities, if any, have been duly authorized by the Company and when executed, countersigned, issued and delivered pursuant to the Delayed Delivery Contracts and the Warrant Agreement, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms (subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles); the Warrant Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company, enforceable in accordance with its terms (subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles); and the Warrants and the Warrant Agreement conform to the descriptions thereof in the Prospectus;
(viii) the Warrant Debt Securities, if any, have been duly authorized, and when executed, authenticated, issued and delivered, upon exercise of the Warrants, pursuant to the Warrant Agreement and the Indenture, will be duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Warrant Agreement and the Indenture and will be enforceable in accordance with their terms (subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles); and the Warrant Debt Securities conform to the description thereof in the Prospectus;
(ix) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, Final Prospectus or to be filed as an exhibit thereto, to the Registration Statement which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(vx) the Registration Statement has and any amendments thereto have become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement Statement, as amended, has been issued, no proceedings for that purpose have been instituted or threatened threatened, and the Registration Statement Statement, the Final Prospectus and the Prospectus each amendment thereof or supplement thereto as of their respective or issue dates (other than the financial statements and other financial and statistical information contained thereinincluded therein or incorporated therein by reference, as to which such counsel need express no opinion) comply complied as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amendedStatement, or any amendment thereof, at the Registration Statement time it became effective, (except as aforesaid) contained any 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 Prospectus Final Prospectus, as of its date and on the Closing Date included amended or supplemented, (except as aforesaid) includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statementmisleading;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated hereinherein or in any Warrant Agreement or in any Delayed Delivery Contract, except such as may have been obtained under the Act and such as may be required under the blue sky state securities laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(ivxii) neither the issue and sale of the Securities being sold by the Selling Stockholder Securities, nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or nor the fulfillment of the terms hereof by the Selling Stockholder or of any Warrant Agreement or of any Delayed Delivery Contract will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or Byby-laws of the Selling Stockholder Company or the terms of any indenture Agreement or other agreement or instrument Instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or boundcounsel, or any judgmentstatute or any order, order rule or decree regulation known to such counsel to be applicable to the Selling Stockholder Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder Company or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State States of Texas and the State of Delaware Minnesota or the Federal laws of with respect to its corporation law, Delaware, or the United States, to the extent they deem deemed proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe believed to be reliablreliable and who are satisfactory to counsel for the Underwriters; and (B) as to factual matters, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM P.M., New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM P.M., New York City time time, on such date or (ii) 9:30 AM A.M., New York City time, on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM P.M., New York City time time, on such date; if filing of the Prospectus, or any amendment or supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such amendment or supplement, 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 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 their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the CompanyCompany and its Material Subsidiaries, ATX Technologies and ATX Europe GmbH (“ATX Europe”) including the Partnership, has been duly incorporated and is validly existing as a corporation or other organization in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, as amended or supplemented, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualificationqualification and is subject to no material liability or disability by reason of the failure to be so qualified in any jurisdiction;
(ii) all the outstanding shares of capital stock or partnership interests of ATX Technologies and ATX Europe each Material Subsidiary of the Company have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth on Exhibit A or in the Prospectus, as amended or supplemented, all outstanding shares of capital stock or partnership interests of ATX Technologies and ATX Europe such Material Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when authorized and issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be are fully paid and nonassessable; the Mirror Partnership Units have been duly and validly authorized and issued and are fully paid and non-assessable, and have the same rights, preferences, terms and provisions as the Securities; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, on the New York Stock Exchange, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Marketissuance; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the SecuritiesSecurities arising by operation of law or the Company’s articles of incorporation or By-laws, or, to the knowledge of such counsel, under any agreement by which the Company is bound; and, except as set forth in the ProspectusProspectus or such opinion, as amended or supplemented, to the knowledge of such counsel, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the its Material Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document relating to the Company or its Material Subsidiaries of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included or incorporated by reference in the Prospectus under the headings “Capital Stock”, “Description of Capital Common Stock,”, “Description of Preferred Stock”, insofar as they purport to constitute a summary of the terms of the Securities, and the statements included or incorporated by reference in the Prospectus under the heading “Plan of Distribution” and in the Prospectus Supplement under the headings “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future SaleAdditional Federal Income Tax Considerations” and “Underwriting”” (other than the information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives), in each case insofar as such statements summarize legal matters, agreementsagreements to which the Company is a party, documents or proceedings discussed therein, are accurate and fair summaries of such terms, legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any amendments or supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) ), each as amended or supplemented, comply as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and although counsel assumes no responsibility for the accuracy, completeness or fairness of statements made therein except to the extent set forth in paragraph (iv) above, such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, amended the Registration Statement contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of its date and or on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, be an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required to be obtained by the Company in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue execution and sale delivery by the Company of this Agreement, its compliance with all of the Securities, nor provisions hereof and the consummation by the Company of any other of the transactions herein contemplated, nor and, to the fulfillment knowledge of such counsel, the sale of the terms hereof, nor Securities being sold by Company and the consummation by the parties other than the Company of any of the Merger transactions herein contemplated, will not conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the its Material Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Material Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument known to such counsel and to which the Company or any of its Material Subsidiaries (including the Subsidiaries Partnership) is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree known to such counsel to be applicable to the Company or its Material Subsidiaries (including the Subsidiaries Partnership) of any court, regulatory body, administrative agency, governmental body, body or arbitrator or other authority having jurisdiction over the Company or the its Material Subsidiaries or any of its or their propertiesproperties other than, in the case of clauses (ii) and (iii), such breaches or violation which, if determined adversely to the Company, would not reasonably be expected to have a material adverse effect on the current or future consolidated financial position, shareholders’ equity or results of operations of the Company and its subsidiaries taken as a whole or on the consummation of the transactions contemplated herein;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), to such counsel’s knowledge no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;; and
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the The Company properly (A) exchanged all has qualified to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock Code for each shares taxable year since its inception through the most recently completed fiscal year, and based on assumptions set forth in the Prospectus and certain representations of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, including but not limited to those set forth in an Officer’s Certificate, the Merging Entity Company’s present and ATX Technologies;
(xiv) contemplated organization, ownership, method of operation, assets and income are such that the Merger Company is legal, effective in a position under present law to so qualify for the current fiscal year and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Actfuture. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware Florida or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any amendments or supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ L.L.P.LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any amendment or supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the CompanyCompany or two other authorized signatories, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any amendments or supplements to the Prospectus 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 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 Prospectus (exclusive of any amendment or supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiariessubsidiaries, 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 Prospectus (exclusive of any amendment or supplement thereto).
(e) The Selling Stockholder Company shall have requested and caused , counsel for the Selling Stockholder, KPMG LLP and PricewaterhouseCoopers LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives, to the effect that:set forth in Statement of Auditing Standards No. 72 and as to such other matters as you may reasonably request.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the 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 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) and the Prospectus (exclusive of any amendment or supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating.
(i) this Agreement and the Custody Agreement and Power of Attorney The Securities shall have been duly authorized, executed listed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company admitted or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablauthor
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 Company, the Selling Stockholder and Citibank, N.A. 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 and Company, the Selling Stockholder and Citibank, N.A. made in any certificates pursuant to the provisions hereof, to the performance by the Company and Company, the Selling Stockholder and Citibank, N.A. of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Bird LLP, counsel for the Company, to have furnished to the Representatives and Citibank, N.A. their opinion, dated the Closing Date and addressed to the RepresentativesRepresentatives and Citibank, N.A., to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with has full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Prospectus; each of the Company and Global Payments Direct, Inc., Global Payment Systems LLC and DolEx Dollar Express, Inc. (individually a “Subsidiary” and collectively the “Subsidiaries”) is validly existing as a corporation or limited liability company in good standing under the laws of the jurisdiction in which it is chartered or organized and is duly qualified to do business as a foreign corporation or limited liability company and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized equity capitalization is as set forth in the Prospectus; and the capital stock of the Company conforms in all material respects to the description thereof contained in the Final Prospectus; the Underwritten Stockholder Securities, the Option Securities and the other outstanding shares of Common Stock issued to the Selling Stockholder have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder Rights evidenced by the Company Securities and the Additional Hedge Securities have been duly and validly authorized, and, when issued authorized and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessableissued; the Securities, the Additional Hedge Securities being sold hereunder by the Company and related Rights are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National MarketNew York Stock Exchange; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities or the Additional Hedge Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iviii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; ;
(iv) the description of the Company’s Common Stock and the statements included its rights to purchase shares of Common Stock or Series A Junior Participating Preferred Stock as contained in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case Company’s amended Registration Statement on Form 10 insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; ;
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required by the Company in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and the distribution of the Additional Hedge Securities by Citibank, N.A. in the manner contemplated in this Agreement and in the Final Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the consummation of any of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries pursuant to, (i) the charter or by-laws of the Company or the Subsidiaries, (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 or its subsidiaries is a party or bound or to which its or their property is subject, that has been filed or incorporated by reference as an exhibit to the Company’s Annual Report on Form 10-K for the year ended May 31, 2003 or any subsequent filing under the Exchange Act, in each case that is material to the Company and its subsidiaries, taken as a whole, or (iii) any statute, law, rule, regulation, judgment, order or decree, which, to the knowledge of such counsel, is applicable to the Company or its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its subsidiaries or any of its or their properties; and
(x) no holders of securities of the Company, other than the Selling Stockholder, have rights to the registration of such securities under the Registration Statement. In addition, such counsel shall confirm that it has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amendedamended or at the Execution Time, the Registration Statement contained any 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 or on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State States of Texas and the State of Delaware Georgia or New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives Company shall have received from requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P.▇▇, counsel for General Counsel of the UnderwritersCompany, such opinion or opinionsto have furnished to the Representatives and Citibank, N.A. her opinion, dated the Closing Date and addressed to the RepresentativesRepresentatives and Citibank, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing DateN.A., to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations statements incorporated by reference in the Final Prospectus under the headings “Legal Proceedings” and warranties “Management’s Discussion and Analysis of Financial Condition and Results of Operations – Forward-Looking Results of Operations – Airlines”, from the Company in this Agreement Company’s Form 10-K for the fiscal year ended May 31, 2003 as modified or superceded by the Company’s subsequently filed Quarterly Reports on Form 10-Q and other filings under the Exchange Act, insofar as such statements summarize legal matters or proceedings discussed therein, are true accurate and correct on and as fair summaries 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 such legal matters or satisfied at or prior to the Closing Date;proceedings; and
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in the Final Prospectus, no options, warrants or contemplated other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Prospectus Company are outstanding. In rendering such opinion, such counsel may rely (exclusive A) as to matters involving the application of laws of any supplement thereto)jurisdiction other than the State of Georgia or the Federal laws of the United States, to the extent she deems proper and specified in such opinion, upon the opinion of other counsel of good standing whom she believes to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent she deems proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(ed) The Selling Stockholder shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Selling Stockholder, to have furnished to the Representatives and Citibank, N.A. their opinion, opinion dated the Closing Date and addressed to the RepresentativesRepresentatives and Citibank, N.A., to the effect that:that (except for the opinion furnished to the Representatives, which need not address opinion (iii) below):
(i) this Agreement assuming that (A) the Depository Trust Company (“DTC”) is a “securities intermediary” as defined in Section 8-102 of the Uniform Commercial Code of New York (the “New York UCC”), and the Custody Agreement State of New York is the “securities intermediary’s jurisdiction” of DTC for purposes of Section 8-110 of the New York UCC, (B) the Underwritten Stockholder Securities and Power the Option Securities are registered in the name of Attorney DTC or its nominee, (C) DTC indicates by book entries on its books that security entitlements with respect to the Underwritten Stockholder Securities and the Option Securities have been duly authorizedcredited to the Underwriters’ securities accounts, executed (D) the Selling Stockholder has full power, right and delivered authority to sell the Underwritten Stockholder Securities and the Option Securities to be sold by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(iiE) assuming that each Underwriter acquires its interest in the Underwritten Stockholder Securities it has purchased from the Selling Stockholder or Option Securities without notice of any adverse claim (within the meaning of Section 8-105 502 of the New York UCC), upon the payment and transfer contemplated by this Agreement each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(ii) no consent, approval, authorization or order of any federal or New York governmental agency or body, or, to such counsel’s knowledge, any Federal or New York court is required to be obtained by or on behalf of the Selling Stockholder for the sale of the Underwritten Stockholder Securities and the Option Securities by the Selling Stockholder to the Underwriters pursuant to this Agreement and the compliance by the Selling Stockholder with all of the provisions of this Agreement, except (v) such as may have been obtained under the Act, (w) such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and/or distribution of the Underwritten Stockholder Securities and the Option Securities by the Underwriters, (x) such as may relate to the review of the transaction by the NASD, (y) such other approvals as have been obtained and (z) such consent, approval, authorization or order where the failure to obtain such consent, approval, authorization or order would not have a material adverse effect on the ability of the Selling Stockholder to sell the Underwritten Stockholder Securities and the Option Securities pursuant to or otherwise satisfy its obligations under this Agreement; and
(iii) no consent, approval, authorization or order of any court federal or New York governmental agency or body body, or to such counsel’s knowledge, any Federal or New York court is required to be obtained by or on behalf of the Selling Stockholder for the consummation compliance by the Selling Stockholder with its agreements with Citibank, N.A. contemplated herein or for the sale by Citibank, N.A. of the transactions Underwritten Hedge Securities or the Additional Hedge Securities contemplated hereinhereby, except (v) such as may have been obtained under the Act and Act, (w) such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Underwritten Hedge Securities by the Underwriters and the distribution of the Additional Hedge Securities by Citibank, N.A., (x) such as relate to the review of the transaction by the NASD, (y) such other approvals (specified in such opinion) as have been obtained; and
obtained or (ivz) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict withsuch conflict, result in a breach or violation ofthat would not have a material adverse effect on the ability of Citibank, or constitute a default under any law or N.A. to sell the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel Underwritten Hedge Securities and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiariesAdditional Hedge Securities as contemplated hereby. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablreliable and who are satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Selling Stockholder and public officials.
(e) The Selling Stockholder shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇▇, the Assistant General Counsel of the Canadian Imperial Bank of Commerce, to have furnished to the Representatives and Citibank, N.A. his opinion dated the Closing Date and addressed to the Representatives and Citibank, N.A., to the effect that (except for the opinion furnished to the Representatives, which need not address opinions (iv) and (v) below):
(i) this Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement
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 Fund and the Selling Stockholder Adviser contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company and the Selling Stockholder Fund made in any certificates pursuant to the provisions hereof, to the performance by the Company and Fund or the Selling Stockholder Adviser of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b)497, the Prospectus, and any such supplement, will be 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Fund shall have requested and caused Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the CompanyFund, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) The Fund has been duly incorporated formed and is validly existing as a corporation in good standing as a statutory trust under the laws of the jurisdiction in which it is chartered or organizedState of Delaware, with full corporate power and authority to own or leaseown, as the case may be, lease and to operate its properties and to conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification; and that the Fund has no subsidiaries;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly The Fund's authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company Fund conforms in all material respects to the description thereof contained in the Prospectus; the all outstanding shares of Common Stock Shares have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National MarketAMEX; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company Common Shares are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company Fund are outstanding;
(iviii) to To the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries Fund or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is are no franchiseagreements, contract contracts, indentures, leases or other document of a character instruments that are required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as requiredrequired by the Act, the 1940 Act or the Rules and Regulations; and the statements included in the Prospectus under the headings “Description "Tax Matters" and "Anti-Takeover and Other Provisions in the Declaration of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case Trust" insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(viv) the The Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has 497 have been made in the manner and within the time period required by Rule 424(b)497; 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunderAct Rules and Regulations; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, amended the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(viv) The execution and delivery of and the performance by the Fund of its obligations under this Agreement has and the Fund Agreements have been duly authorized, and validly authorized by the Fund and this Agreement and the Fund Agreements have been duly executed and delivered by the CompanyFund and constitute the valid and legally binding agreements of the Fund, enforceable against the Fund in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Fund's obligations thereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles;
(vi) The Fund is duly registered with the Commission under the 1940 Act as a closed-end, diversified management investment company and all action has been taken by the Fund as required by the Act and the 1940 Act and the Rules and Regulations in connection with the issuance and sale of the Securities to make the public offering and consummate the sale of the Securities as contemplated by this Agreement; the Fund Agreements comply in all material respects with all applicable provisions of the Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations; and the Fund has not received any notice from the Commission pursuant to Section 8(e) of the 1940 Act with respect to the 1940 Act Notification or the Registration Statement;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated hereinherein or in the Fund Agreements, except such as have been made or obtained under the Act and the 1940 Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ixviii) neither Neither the issue issuance and sale of the Securities, nor the consummation execution, delivery or performance of this Agreement or any other of the transactions herein contemplated, nor Fund Agreements by the fulfillment of the terms hereofFund, nor the consummation by the Fund of the Merger transactions contemplated hereby or thereby or the adoption of the Fund's Dividend Reinvestment Plan (i) conflicts or will conflict withwith or constitutes or will constitute a breach of the declaration of trust or by-laws of the Fund, (ii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Fund is a party or by which it or any of its properties may be bound or (iii) violates or will violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Fund or any of its properties or will result in a breach or violation of, the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries Fund pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (ii) to 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 or the Subsidiaries it is a party or by which it may be bound or to which its any of the property or their property assets of the Fund is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;; and
(xix) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no No holders of securities of the Company Fund have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company Fund and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives You shall have received from on the Closing Date an opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇ L.L.P.▇▇▇▇, Esq., counsel for the Underwriters, such opinion or opinionsAdviser, dated the Closing Date and addressed to the Representativesyou, with respect to the issuance and sale as Representatives of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representativesseveral Underwriters, to the effect that:
(i) The Adviser has been duly formed and is validly existing in good standing as a corporation under the laws of the State of California, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification.
(ii) The Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund or the Additional Compensation Agreement as contemplated by the Prospectus;
(iii) The Adviser has full power and authority to enter into this Agreement Agreement, the Fund Agreements to which it is a party and the Custody Additional Compensation Agreement; and this Agreement, the Fund Agreements to which it is a party and the Additional Compensation Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling StockholderAdviser and this Agreement, the Custody Fund Agreements to which the Adviser is a party and the Additional Compensation Agreement is are each a valid and legally binding on agreement of the Selling StockholderAdviser, enforceable against the Adviser in accordance with its terms except as rights to indemnity and contribution hereunder and thereunder may be limited by Federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Adviser's obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and the Selling Stockholder has full legal right other laws relating to or affecting creditors' rights generally and authority to sell, transfer and deliver by general equitable principles whether enforcement is considered in the manner provided a proceeding in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderequity or at law;
(iiiv) assuming that each Underwriter acquires its interest This Agreement, the Fund Agreements to which the Adviser is a party and the Additional Compensation Agreement comply in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 all material respects with all applicable provisions of the UCC)1940 Act, each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein1940 Act Rules and Regulations, the Advisers Act and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, Advisers Act Rules and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such SecuritiesRegulations;
(iiiv) Neither the execution, delivery or performance of this Agreement, the Fund Agreements to which the Adviser is a party or the Additional Compensation Agreement, nor the consummation by the Adviser of the transactions contemplated hereby and thereby (A) conflicts or will conflict with, or constitutes or will constitute a breach of or default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with, or constitutes or will constitute a material breach of or material default under any material agreement, indenture, lease or other instrument to which the Adviser is a party, or will result in the creation or imposition of any material lien, charge or encumbrance upon any material property or material assets of the Adviser, nor will any such action result in any material violation of any law of the State of New York, the Delaware General Corporation Law, the 1940 Act, the Advisers Act or any regulation or judgment, injunction, order or decree applicable to the Adviser or any of its properties;
(vi) The description of the Adviser and its business in the Prospectus complies in all material respects with all requirements of the Act, the 1940 Act and the Rules and Regulations;
(vii) To the best knowledge of such counsel after reasonable inquiry, other than as described or contemplated in the Prospectus, there are no actions, suits or other legal or governmental proceedings pending or threatened against the Adviser or to which the Adviser or any of its property is subject which are required to be described in the Prospectus;
(viii) The Adviser owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations as are necessary for it to carry on its business as contemplated in the Prospectus;
(ix) No material consent, approval, authorization or order of any court or governmental agency registration or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection filing with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agencyor other governmental body, governmental body agency or arbitrator having jurisdiction over official is required on the Selling Stockholder part of the Adviser for the performance of this Agreement, the Fund Agreements or the Additional Compensation Agreement by the Adviser or for the consummation by the Adviser of the transactions contemplated hereby or thereby; and
(x) Such counsel shall also state that he has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended the Registration Statement contained any 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 Prospectus as of its subsidiariesdate and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware California or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablreliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Fund and public
Appears in 1 contract
Sources: Underwriting Agreement (Franklin Templeton Limited Duration Income Trust)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder 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 Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Jones, Walker, Waechter, Poitevent, Carrere & ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPL.L.P., counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies Company and ATX Europe GmbH (“ATX Europe”) the Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualificationqualification wherein it owns or leases material properties or conducts material business and where the failure to be so qualified could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; notwithstanding the foregoing, the Company is duly qualified to do business as a foreign corporation and is in good standing under the laws of Texas;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries Subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Final Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Final Prospectus; the outstanding shares of Common Stock (including the Securities being sold hereunder by the Selling Stockholders) have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold by the Selling Stockholders are duly quoted, and admitted and authorized for trading on the Nasdaq National Market and the Securities being sold hereunder by the Company are duly listed, quoted and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distributionissuance, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Final Prospectus, to the knowledge of such counsel, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the its Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, amended the Registration Statement contained any 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 on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Prospectus, will not be, be an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Final Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the its Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (ii) to the knowledge of such counsel after reasonable inquiry, 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 or the its Subsidiaries is a party or bound or to which its or their property is subject, or (iii) to the knowledge of such counsel after reasonable inquiry, any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the its Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the its Subsidiaries or any of its or their properties;
, which violation or default could, in the case of clauses (xii) and (iii) above, either individually or in the aggregate with all other violations and defaults referred to in this paragraph (ix) (if any), reasonably be expected to have a Material Adverse Effect in the ordinary course of business, except as set forth in or contemplated in the Prospectus Prospectus; and
(exclusive of any supplement thereto), x) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) , except for the Merger complied Selling Stockholders with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ respect to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized Securities being sold by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization them pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the ActUnderwriting Agreement. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives Selling Stockholders shall have received from requested and caused Jones, Walker, Waechter, Poitevent, Carrere & ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling StockholderStockholders, to have furnished to the Representatives their opinion, opinion dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling StockholderStockholders, the Custody Agreement is valid and binding on the Selling Stockholder, Stockholders and the each Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the such Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the any Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the any Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the any Selling Stockholder or the fulfillment of the terms hereof by the any Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder (if such Selling Stockholder is not a natural person) or the terms of any indenture or other agreement or instrument known to such counsel and to which the any Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the any Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the any Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion opinions of other counsel of good standing whom they believe to be reliablreliable and who are satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of, or of responsible officers of, the Selling Stockholders and public officials.
(d) The Representatives shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the 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 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 Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus 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 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 Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(f) Each Selling Stockholder shall have furnished to the Representatives a certificate, signed by such Selling Stockholder (or in the case of a Selling Stockholder which is not a natural person, by the Chairman of the Board or the President and the principal financial or accounting officer of such Selling Stockholder), dated the Closing Date, to the effect that the signer of such certificate has caref
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 Fund and the Selling Stockholder Advisers contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company Fund and the Selling Stockholder Advisers made in any certificates pursuant to the provisions hereof, to the performance by the Company and Fund or the Selling Stockholder Advisers of its their obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the total public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the total public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b)497, the Prospectus, and any such supplement, will be 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 order pursuant to Section 8(e) of the 1940 Act shall have been issued and no proceedings for that purpose shall have been instituted or threatened, 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 M▇▇▇▇▇, ▇▇▇▇▇ & B▇▇▇▇▇▇ LLP, counsel for the CompanyFund, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) The Fund has been duly incorporated formed and is validly existing as a corporation in good standing as a statutory trust under the laws of the jurisdiction in which it is chartered or organizedState of Delaware, with full corporate power and authority to own or leaseown, as the case may be, lease and to operate its properties and to conduct its business as described in the Preliminary Prospectus and the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualificationqualification except to the extent that the failure to be so qualified would not have a material adverse effect on the Fund; and the Fund has no subsidiaries;
(ii) all The Fund’s authorized equity capitalization is as set forth in the outstanding shares of Preliminary Prospectus and the Prospectus; the capital stock of ATX Technologies the Fund conforms in all material respects to the description thereof contained in the Registration Statement, the Preliminary Prospectus and ATX Europe the Prospectus; all outstanding Common Shares have been duly and validly authorized and issued and are fully paid and nonassessable, and, nonassessable (except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock Section 3.8 of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares Declaration of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessableTrust); the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; nonassessable (except as set forth in Section 3.8 of the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice Declaration of issuance and evidence of satisfactory distribution, on the Nasdaq National MarketTrust); the certificates for the Securities are in valid and sufficient form; the holders of the outstanding shares of capital stock of the Company Common Shares are not entitled to preemptive or other rights to subscribe for the SecuritiesSecurities under any of the Fund Agreements, the Declaration of Trust, the By-Laws or the Delaware Statutory Trust Act; and, and except as set forth in the Preliminary Prospectus and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, issue or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company Fund are outstandingoutstanding and no holder of securities of the Fund has rights to the registration of such securities under the Registration Statement;
(iviii) to To the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries Fund or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Preliminary Prospectus and the Prospectus, and there is are no franchiseagreements, contract contracts, indentures, leases or other document of a character instruments that are required to be described in the Registration Statement Statement, the Preliminary Prospectus or the Prospectus, or to be filed as an exhibit theretoto the Registration Statement, which is not described or filed as required; required by the Act, the 1940 Act or the Rules and the Regulations;
(iv) The statements included in the Preliminary Prospectus and the Prospectus under the headings “Description of Capital StockFederal Income Tax Matters,” “Certain Relationships and Related Party TransactionsDescription of Preferred Shares,” “Shares Eligible for Future SaleDescription of Common Shares” and “Underwriting”, Certain Provisions in each case the Agreement and Declaration of Trust” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the The Registration Statement has become effective under the Act; any required filing of the Preliminary Prospectus and the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has 497 have been made in the manner and within the time period required by Rule 424(b)497; 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 and by the Commission;
(vi) The Registration Statement Statement, the Preliminary Prospectus and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the 1940 Act and the rules thereunderRules and Regulations; and and, such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 each of the Preliminary Prospectus, as of the time of the pricing of the Securities on [ ], 2007] and the Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vivii) The execution and delivery of and the performance by the Fund of its obligations under this Agreement has and the Fund Agreements have been duly authorized, and validly authorized by the Fund and this Agreement and the Fund Agreements have been duly executed and delivered by the Company;
(vii) Fund and constitute the Company is not andvalid and legally binding agreements of the Fund, after giving effect enforceable against the Fund in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the offering and sale qualification that the enforceability of the Securities Fund’s obligations thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amendedother laws relating to or affecting creditors’ rights generally and by general equitable principles;
(viii) no The Fund is duly registered with the Commission under the 1940 Act as a closed-end, non-diversified management investment company and all action has been taken by the Fund as required by the Act, the 1940 Act and the Rules and Regulations in connection with the issuance and consummation of the sale of the Securities as contemplated by this Agreement; the Fund Agreements comply in all material respects with all applicable provisions of the Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations;
(ix) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated hereinherein or in the Fund Agreements, except such as have been made or obtained under the Act and the 1940 Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Preliminary Prospectus and the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ixx) neither Neither the issue issuance and sale of the SecuritiesSecurities by the Fund pursuant to this Agreement, the execution and delivery of this Agreement or any of the Fund Agreements by the Fund, nor the consummation of any other by the Fund of the transactions herein contemplated, nor contemplated by this Agreement and the fulfillment Fund Agreements (1) conflicts or will conflict with or constitutes or will constitute a breach of the terms hereofDeclaration of Trust or By-laws, nor the consummation of the Merger (2) conflicts or will conflict withwith or will constitute a breach of, or a default under, any agreement, indenture, lease, or other instrument to which the Fund is party or by which it or any of its properties may be bound, (3) violates or will violate any statute, law, rule, regulation, judgment, injunction, order or decree applicable to the Fund or any of its properties or (4) will result in a breach or violation of, the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries Fund pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (ii) to 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 or the Subsidiaries it is a party or by which it may be bound or to which its any of the property or their property assets of the Fund is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal federal laws of the United States, to the extent they deem proper and to the extent specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company Fund and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives You shall have received from on the Closing Date an opinion of M▇▇▇▇▇, ▇▇▇▇▇ & B▇▇▇▇▇▇ L.L.P.LLP, counsel for the Underwriters, such opinion or opinionsAdviser, dated the Closing Date and addressed to the Representativesyou, with respect to the issuance and sale as Representatives of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representativesseveral Underwriters, to the effect that:
(i) The Adviser has been duly formed and is validly existing in good standing as a limited partnership under the laws of the State of Delaware, with full limited partnership power and authority to own, lease and operate its properties and to conduct its business as described in the Preliminary Prospectus and the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification.
(ii) The Adviser is duly registered under the Advisers Act as an investment adviser and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement as contemplated by the Preliminary Prospectus and the Prospectus;
(iii) The Adviser has full power and authority to enter into this Agreement and the Custody Management Agreement;
(iv) This Agreement and Power of Attorney have has been duly authorized, executed and delivered by the Selling StockholderAdviser;
(v) The Management Agreement has been duly authorized, executed and delivered by the Custody Agreement Adviser and is a valid and legally binding on agreement of the Selling StockholderAdviser, enforceable against the Adviser in accordance with its terms except as rights to indemnity and contribution may be limited by federal or state securities laws and subject to the Selling Stockholder has full legal right qualification that the enforceability of the Adviser’s obligations thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and authority other laws relating to sell, transfer or affecting creditors’ rights generally and deliver in the manner provided in this by general equitable principles;
(vi) This Agreement and the Custody Management Agreement comply in all material respects with all applicable provisions of the Securities being sold by such Selling Stockholder hereunderAct, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations;
(iivii) assuming that each Underwriter acquires its interest in Neither the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 issuance and sale of the UCC)Securities, each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company execution, delivery or other securities intermediary by making payment therefor as provided hereinperformance of this Agreement or the Management Agreement, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for nor the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other Adviser of the transactions herein or therein contemplated by the Selling Stockholder (1) conflicts or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in or constitutes or will constitute a breach of or violation ofdefault under, the certificate of limited partnership or limited partnership agreement, or other organizational documents, of the Adviser, (2) conflicts or will conflict with, or constitutes or will constitute a breach of or default under any law agreement, indenture, lease or other instrument to which the charter Adviser is a party or By-laws by which it or any of its properties may be bound, (3) violates or will violate any statute, law, rule, regulation, judgment, injunction, order or decree applicable to the Adviser or any of its properties or (4) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Stockholder or Adviser pursuant to the terms of any indenture or other agreement or instrument known to which it is a party or by which it may be bound or to which any of the property of assets of the Adviser is subject;
(viii) The description of the Adviser and its business in the Preliminary Prospectus and the Prospectus (and any amendment or supplement thereto) under the caption “Management of the Trust” is accurate in all material respects;
(vi) To the best knowledge of such counsel after reasonable inquiry, other than as described or contemplated in the Registration Statement, the Preliminary Prospectus and the Prospectus, there are no actions, suits or other legal or governmental proceedings pending or threatened against the Adviser or to which the Selling Stockholder Adviser or any of its subsidiaries property is a party or bound, or any judgment, order or decree known to such counsel subject which are required to be applicable described in the Registration Statement, the Preliminary Prospectus or the Prospectus;
(ix) The Adviser owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations as are necessary for it to carry on its business as contemplated in the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas Preliminary Prospectus and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablProspectus;
Appears in 1 contract
Sources: Underwriting Agreement (Ing Clarion Real Estate Income Fund)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date Settlement Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ Godward LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to in form and substance approved by Citigroup Global Markets Inc. and substantially the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise form set forth in the ProspectusExhibit B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by counsel for the Company either directly or through wholly owned subsidiaries free with respect to patents and clear of any perfected security interest andproprietary rights, to have furnished to the knowledge of such counselRepresentatives their opinion, after due inquirydated the Closing Date, any other security interestand addressed to the Representatives, claim, lien or encumbrance;
(iii) in form and substance approved by Citigroup Global Markets Inc. and substantially the Company’s authorized capitalization is as form set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;Exhibit C hereto.
(ivd) to the knowledge of such counselThe Company shall have requested and caused ▇▇▇▇▇, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ , P.C., counsel for the Company with respect to regulatory matters, to have furnished to the Company Representatives their opinion, dated the Closing Date and (iv) assumed all of addressed to the outstanding stock options Representatives, in form and common stock purchase warrants of ATX Technologies. The foregoing actions substance approved by Citigroup Global Markets Inc. and substantially the form set forth in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;Exhibit D hereto.
(xiiie) The Selling Stockholder shall have requested and caused ▇▇▇▇▇▇ Godward LLP, special counsel for the Merger was duly authorized Selling Stockholder, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives, in form and substance approved by Citigroup Global Markets Inc. and substantially in the Company, the Merging Entity and ATX Technologies;form set forth in Exhibit E hereto.
(xivf) the Merger is legalThe Representatives shall have received from King & Spalding LLP, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to special counsel for the Underwriters with respect to patents and (Bproprietary rights, such opinion(s) as to matters of factor letter(s), dated the Closing Date and addressed to the extent they deem properRepresentatives, on certificates of responsible officers of as the Representatives may require, and the Company and public officials. References the Selling Stockholder shall have furnished to such counsel such documents as such counsel requests for the Prospectus in this paragraph (bpurpose of enabling it deliver such opinion(s) shall also include any supplements thereto at the Closing Dateor letter(s).
(cg) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ L.L.P.LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP requests for the purpose of enabling them it to pass upon such matters.
(dh) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman principal executive officer of the Board or the President Company and by the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiariessubsidiaries, 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 Prospectus (exclusive of any supplement thereto).
(ei) The Selling Stockholder shall have requested and caused furnished to the Representatives a certificate, counsel for signed by the Selling Stockholder, dated the Closing Date, to the effect that the signer of such certificate has examined the Registration Statement, the Prospectus, any supplement to the Prospectus and this Agreement, that the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date to the same effect as if made on the Closing Date and that and the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(j) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance reasonably satisfactory to the Representatives, to confirming that they are independent registered public accountants within the meaning of the Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for the nine-month period ended September 30, 2004, and as at September 30, 2004, in accordance with procedures specified by the PCAOB for a review of interim financial information as described in AU Section 722, Interim Financial Information, and stating in effect that:
(i) this Agreement in their opinion the audited financial statements included in the Registration Statement and the Custody Agreement Prospectus and Power reported on by them comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed the Act and delivered the related rules and regulations adopted by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderCommission;
(ii) assuming that each Underwriter acquires its interest in on the Securities it has purchased from the Selling Stockholder without notice basis of any adverse claim (within the meaning of Section 8-105 a reading of the UCC)latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, each Underwriter that has purchased such Securities delivered on completed in accordance with the Closing Date to The Depository Trust Company or other securities intermediary procedures specified by making payment therefor the PCAOB for a review of interim financial information as provided hereindescribed in AU Section 722, Interim Financial Information, of the unaudited interim financial information for the nine-month period ended September 30, 2004, and that has had such Securities credited as at September 30, 2004; 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 securities account or accounts comments set forth in such letter; a reading of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement the minutes of the meetings of the stockholders and the board of directors (within the meaning of Section 8-102(a)(17including committees thereof) of the UCC) to such Securities purchased by such Underwriter, Company and no action based on an adverse claim (within the meaning its subsidiaries; and inquiries of Section 8-105 certain officials of the UCCCompany who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to September 30, 2004, nothing came to their attention which caused them to believe that:
(A) may be asserted against such Underwriter 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 GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement and the Prospectus;
(B) at a specified date not more than five days prior to the date of the letter, there was any change in the capital stock, increase in long-term debt or decrease in net current assets or stockholders’ equity of the Company, as compared with amounts shown in the September 30, 2004 unaudited consolidated balance sheet included in the Registration Statement and the Prospectus, or for the period from October 1, 2004 to such Securities;specified date there were any decreases, as compared to the corresponding period in the preceding year, in consolidated net sales or in the total or per-share amounts of income before extraordinary items or of net income, 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; and
(iii) no consentthey have performed certain other specified procedures as a result of which they determined that certain information of an accounting, approvalfinancial or statistical nature (which is limited to accounting, authorization financial or order statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Prospectus, including the information set forth under the captions “Summary—The Offering,” “Summary—Summary Financial Data,” “Use of Proceeds,” “Capitalization,” “Dilution,” “Selected Consolidated Financial Data,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Management” and “Certain Transactions” in the Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation.
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any court amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or governmental agency decrease specified in the letter or body is required for letters referred to in Section 6(j) or (ii) any change, or any development involving a prospective change, in or affecting the consummation 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 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) and the Prospectus (exclusive of any supplement thereto).
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(m) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the transactions contemplated herein, except Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such as may rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(n) The Securities shall have been obtained under listed and admitted and authorized for trading on the Act Nasdaq National Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(o) At the Execution Time, the Company shall have furnished to the Representatives a letter (a “Lock-Up Letter”) substantially in the form of Exhibit A hereto (with such changes as may be required under approved by Citigroup Global Markets Inc.) from (i) each officer and director of the blue sky laws Company; and (ii) holders of substantially all of the outstanding shares of Common Stock (treating, for purposes of this Section 6(o), each holder of any jurisdiction security convertible into or exercisable or exchangeable for shares of Common Stock or any warrant or other right to acquire shares of Common Stock or any such security as a holder of the shares of Common Stock underlying such security, warrant or right, and treating as outstanding, for purposes of this Section 6(o), each share of Common Stock underlying any such security, warrant or right).
(p) All outstanding shares of the Company’s Preferred Stock, $0.001 par value per share (the “Preferred Stock”), shall have converted into the number of shares of Common Stock, and shall have converted in connection the manner, set forth in the Registration Statement and the Prospectus; the Company shall have duly effected and completed a 0.42-for-1 reverse stock split of the Common Stock and the Preferred Stock in the manner set forth in the Registration Statement and the Prospectus; the Amended and Restated Certificate of Incorporation of the Company and the Amended and Restated Bylaws of the Company, each in the form filed as an exhibit to the Registration Statement, shall have been duly authorized and approved in accordance with the purchase Delaware General Corporation Law and distribution shall have become, or, concurrently with the closing of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Underwritten Securities being sold to the Underwriters pursuant to this Agreement, shall become, effective and in full force and effect. 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 Stockholder nor in the consummation of any other of the transactions herein contemplated manner prescribed by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel Section 12 hereof. The documents required to be applicable to delivered by this Section 6 shall be delivered at the Selling Stockholder or any office of its subsidiaries of any court▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, regulatory bodycounsel for the Underwriters, administrative agencyat ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, governmental body or arbitrator having jurisdiction over ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablClosing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Shareholders contained herein in this Underwriting Agreement 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 Stockholder Shareholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Shareholders of its their respective obligations hereunder under this Underwriting Agreement and to the following additional conditions:
(a) If the Registration Statement has and the ADR Registration Statement have not become effective prior to the Execution Time, unless the Representatives Representative agree in writing to a later time, the Registration Statement and the ADR Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of either of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 the ADR Registration Statement 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 their opinion, dated the Closing Date and addressed to the RepresentativesRepresentative, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) This Agreement has been duly incorporated executed and is validly existing as a corporation in good standing delivered by the Company under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;New York law.
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have The Deposit Agreement has been duly executed and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned delivered by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest under New York law and, to assuming due authorization, execution and delivery by the knowledge Depositary constitutes a valid and legally binding obligation of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;the Company.
(iii) Upon the Company’s authorized capitalization is as set forth due issuance of the Securities evidenced by the ADRs against the deposit of Ordinary Shares in accordance with the Deposit Agreement and payment therefor in accordance with the provisions of this Agreement and the Deposit Agreement, such Securities will be validly issued and persons in whose names such ADRs are duly registered will be entitled to the rights specified therein and in the Prospectus; the capital stock of the Company conforms in all material respects Deposit Agreement.
(iv) The Offered Securities to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being be sold hereunder by the Company have been duly and validly authorized, andpursuant to this Agreement, when issued and delivered to and paid for by the Underwriters pursuant to in accordance with the terms of this Agreement, will be fully paid and nonassessable; non-assessable.
(v) The execution and delivery of this Agreement and the Deposit Agreement and the issuance and sale of the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, the Underwriters pursuant to this Agreement on the Nasdaq National Market; the certificates for the Securities Closing Date do not violate any statute, rule or regulation of any U.S. or New York governmental agency which, in such firm's experience, are in valid and sufficient form; the holders of outstanding shares of capital stock normally applicable to transactions of the Company are not entitled to preemptive or other rights to subscribe for type contemplated by this Agreement and the Securities; and, except Deposit Agreement.
(vi) Other than as set forth in the ProspectusRegistration Statements, there are no options, warrants or other rights to purchasecontracts, agreements or understandings known to such counsel between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statements or in any securities being registered pursuant to any other obligations registration statement filed by the Company under the Act.
(vii) The Company is not, and after giving effect to issuethe transactions contemplated by this Agreement and the application of the net proceeds therefrom, as described in the Prospectus, will not be, an "investment company", as such term is defined in the Investment Company Act.
(viii) No consent, approval, authorization or order of, or rights to convert filing with, any obligations into U.S. federal or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or New York state governmental agency, authority agency or body or any arbitrator involving court having jurisdiction over the Company or any of the its Subsidiaries or its or their property of a character that is required to be disclosed obtained by the Company or any Selling Shareholder for the consummation of the transactions contemplated by this Agreement, the Deposit Agreement or the Custody Agreement in connection with the issuance or sale of the Securities, except such as have been obtained and made under the Act and the Exchange Act and such as may be required under state or foreign securities or blue sky laws.
(ix) The Initial Registration Statement, the ADS Registration Statement and the 8-A Registration Statement became effective under the Act or the Exchange Act, as applicable, as of the date and time specified in such opinion, the Additional Registration Statement (if any) was filed and became effective under the Act as of the date and time (if determinable) specified in such opinion, the Prospectus either was filed with the Commission pursuant to the subparagraph of Rule 424(b) specified in such opinion on the date specified therein or was included in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Initial Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Additional Registration Statement has become effective under (as the Act; any required filing case may be), and, to the best of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of a Registration Statement, the ADS Registration Statement, the 8-A Registration Statement or any part of such registration statement has been issued, issued and no proceedings for that purpose have been instituted or threatened and are pending or contemplated under the Act or Exchange Act, as applicable.
(x) Each of the Registration Statement, the ADS Registration Statement, the 8-A Registration Statement and the Prospectus (other than the financial statements Prospectus, and other financial and statistical information contained thereineach amendment or supplement thereto, as to which such counsel need express no opinion) comply of their respective effective or issue dates, complied as to form in all material respects with the applicable requirements of the Act or the Exchange Act, as applicable, and the rules thereunder; Rules and Regulations thereunder (except as to the financial statements, the notes thereto and other financial data included therein as to which such counsel shall express no opinion).
(xi) Such counsel shall state that based on such counsel's participation in conferences with the Underwriters, the representatives of the Company and the Company's accountants concerning the Registration Statement, the ADS Registration Statement, the 8-A Registration Statement and the Prospectus and having considered the matters and statements contained therein, although such counsel has no reason not independently verified the accuracy, completeness or fairness of such statements, nothing has come to such counsel's attention that leads such counsel to believe that on the Effective Date or the date the Registration Statement was last deemed amendedStatement, the ADS Registration Statement, the 8-A Registration Statement and the Prospectus, as of their respective effective or issue dates, contained any 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 Prospectus or any amendment or supplement thereto, as of its issue date and on the or as of such Closing Date included or includes Date, contained any untrue statement of a material fact or omitted or omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than it being understood that such counsel has not been requested to and does not make any comment with respect to the financial statements statements, footnotes and other financial and statistical information data contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) , the Merger complied with applicable law ADS Registration Statement, the 8-A Registration Statement and did not require the consent or approval of any third party that was not obtained;Prospectus).
(xii) The information in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C Prospectus under "Shares Eligible for Future Sale" and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ "Taxation--United States Federal Income Taxation," to the Company extent that such information constitutes matters of U.S. federal or New York state laws or legal conclusions based on such laws, is a fair and (iv) assumed accurate summary in all material respects of the outstanding stock options such matters and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;conclusions.
(xiii) Such counsel does not know of any material pending or threatened actions, suits or proceedings before any U.S. federal or New York state court or governmental agency, authority or any arbitrator involving the Merger was duly authorized by Company required to be described in a Registration Statement or the Company, the Merging Entity and ATX TechnologiesProspectus which are not described as required;
(xiv) The statements set forth in the Merger is legalProspectus under the caption "Description of American Depositary Shares" and "Underwriting", effective and valid and was consummated insofar as they purport to describe or summarize certain provisions of the Deposit Agreement, are accurate descriptions or summaries in accordance with all material respects.
(xv) Under the laws of the State of Texas New York relating to personal jurisdiction, (i) the Company and each Selling Shareholder has, under this Agreement, validly submitted to the personal jurisdiction of any state or federal court located in the State of ;
New York, County of New York in any action arising out of or relating to the Agreement and the transactions contemplated therein and has validly and effectively waived any objection to the venue of a proceeding in any such court as provided in Section 17 of this Agreement, (xvii) its appointment thereunder of CT Corporation as its authorized agent for service of process is valid, legal and binding, and (iii) service of process in the Merger constituted a tax-free reorganization pursuant matter set forth in Section 17 of this Agreement will be effective to Section 368(a)(2)(E) confer valid personal jurisdiction of such court over the Internal Revenue Code of 1986, as amended; andCompany.
(xvi) Upon payment for the issuance Securities and the delivery to DTC or its agent of the Common Stock Securities in connection with book entry form registered in the Merger was exempt from name of Cede & Co. or such other nominee designated by DTC, both as provided for in this Agreement, and the registration provisions crediting of the ActSecurities to the Underwriters' accounts with DTC, Cede & Co. or such other nominee designated by DTC, DTC, the Underwriters will acquire a valid "security entitlement" (within the meaning of New York Uniform Commercial Code Section 8-102) to the Securities, and no action based on an "adverse claim" (as defined in New York Uniform Commercial Code Section 8-102) may be asserted against the Underwriters with respect to such security entitlement if, at such time, the Underwriters do not have notice of any adverse claim within the meaning of New York Uniform Commercial Code Section 8-105.
(xvii) There is no contract or other document known to such counsel of a character required to be described in the Prospectus or to be filed as an exhibit to the Registration Statement that is not described or filed as required. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References Reference to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, Cayman, Cayman Islands counsel for the Selling StockholderCompany, to have furnished to the Representatives Representative their opinion, dated the Closing Date and addressed to the RepresentativesRepresentative, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have Company has been duly authorizedincorporated and is validly existing as a corporation in good standing under the laws of the Cayman Islands, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has with full legal right corporate power and authority to sellown or lease, transfer as the case may be, and deliver to operate its properties and conduct its business as described in the manner provided Prospectus, and is duly qualified to do business as a foreign corporation and is in this Agreement and good standing under the Custody Agreement the Securities being sold by laws of each jurisdiction which requires such Selling Stockholder hereunderqualification;
(ii) assuming that each Underwriter acquires its interest The Company is in good standing with the Registrar of Companies in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;Cayman Islands.
(iii) The Company has an authorized capital as set forth in the Prospectus, and all of the issued shares in the capital of the Company (including the Shares when issued and delivered in accordance with the terms of the Underwriting Agreement) have been duly and validly authorized and issued, are fully paid and non-assessable and, upon entry on the register of members, the person(s) named therein (the "Shareholder") will be the registered holder of such number of Shares as will be noted against their respective names on such register of members. The Company is the registered holder of such number of Shares as are noted against its name on such register of members.
(iv) The Shares are not subject to any overriding or mandatory pre-emptive or similar rights under Cayman Islands law or the Memorandum and Articles of Association of the Company and conform to the description thereof contained in the Prospectus.
(v) The execution and delivery of this Agreement and the Deposit Agreement by the Company and the performance of its obligations thereunder, the Registration Statement, the Prospectus and the filing of the Registration Statement and the Prospectus have been duly authorized and approved by all necessary corporate action of the Company and the execution and delivery of this Agreement and the Deposit Agreement by the Company and the performance of its obligations thereunder do not violate, conflict with or result in a breach of any of the terms or provisions of its Memorandum and Articles of Association or any law, public rule or regulation applicable to the Company in the Cayman Islands currently in force and do not violate, conflict with or result in a breach of any existing order or decree of any governmental authority or agency or any official body in the Cayman Islands.
(vi) This Agreement and the Deposit Agreement have been duly executed and delivered for and on behalf of the Company and constitute legal, valid and binding obligations of the Company enforceable in the Cayman Islands in accordance with its terms except and in so far as such enforcement may be limited as hereinafter set forth.
(vii) The issue of the Registration Statement has been duly authorized and the Registration Statement has been duly executed by and on behalf of the Company.
(viii) No authorizations, consents, orders, permissions or approvals are required from any governmental authorities or agencies or other official bodies in the Cayman Islands and no consentnotice to or other filing with or action by any Cayman Islands governmental authority or regulatory body is required in connection with:
(1) the execution and delivery of this Agreement and the Deposit Agreement;
(2) the performance of any obligation under this Agreement and the Deposit Agreement;
(3) the payment of any amount under this Agreement and the Deposit Agreement; and
(4) the issue of the Shares or the ADSs.
(ix) to ensure the legality, approvalvalidity, authorization enforceability or order admissibility into evidence of each of this Underwriting Agreement, the Deposit Agreement and any other document required to be furnished hereunder or thereunder in the Cayman Islands, it is not necessary that this Underwriting Agreement, the Deposit Agreement or any such other document be filed or recorded with any court or governmental agency or body is required for other authority in the consummation by the Selling Stockholder Cayman Islands, provided such documents are executed outside of the transactions contemplated hereinCayman Islands, except such as may have been obtained under the Act and such as may or that any stamp, registration or similar tax be required under the blue sky laws paid on or in respect of any jurisdiction such document or the Shares or the ADSs in connection with the purchase sale of Securities to the Underwriters.
(x) The statements in the Prospectus under "Risk Factors", "Dividend Policy", "Capitalization", "Management", "Principal and distribution Selling Shareholders", "Description of Share Capital", "Taxation" and "Enforceability of Civil Liabilities", and the statements in the Registration Statement under Item 14, insofar as such statements constitute summaries of the Securities legal matters, documents or proceedings referred to therein, in each case to the extent, and only to the extent, governed by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliabll
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Stockholders 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 and the Selling Stockholder Stockholders made in any certificates delivered pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM PM, New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM PM, New York City time time, on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM PM, New York City time time, on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ Kirkpatrick & Lockhart LLP, counsel for the Company, to have furnished to ▇▇▇▇▇▇▇▇▇ ▇o the Representatives ▇▇▇▇▇sentatives and the Selling Stockholders their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies Brightstar U.S., Inc. and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and Narbitec, LLC is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation or other entity and is in good standing under the laws of each jurisdiction which requires such qualificationstate set forth on Schedule IV to this Agreement;
(ii) all the outstanding shares of capital stock of ATX Technologies Brightstar U.S., Inc. and ATX Europe membership interests of Narbitec, LLC have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all based solely on such counsel's review of corporate records provided to it, 90% of the outstanding shares of capital stock of ATX Technologies Brightstar U.S., Inc. and ATX Europe 51% of the membership interests of Narbitec, LLC are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest except as set forth in the Prospectus and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock (including the Securities being sold hereunder by the Selling Stockholders) have been duly authorized and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Selling Stockholders are duly listed, and admitted and authorized for trading, on the Nasdaq National Market and the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject subject, in each case, to official notice of issuance and evidence of satisfactory distributionissuance, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the SecuritiesSecurities under Delaware law, the Company's organizational documents or, to the knowledge of such counsel, any agreement; and, except as set forth in the Prospectus, to such counsel's knowledge no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is (A) no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which that is not adequately disclosed in the Prospectus, and there is (B) no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which that is not described or filed as required; and the statements included in the Prospectus under the headings “Description heading "Material United States Federal Income Tax Considerations for Non-U.S. Holders of Capital Our Common Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case " insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counselcounsel (based solely on a telephone conversation with a member of the staff of the Commission), no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, immediately after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any Delaware, Florida, New York or Federal court or governmental agency or body is required for or by the Company in connection with the transactions contemplated hereinhereby, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue issuance and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated hereby nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries its subsidiaries pursuant to, (i) the charter or by-laws of the Company or its SubsidiariesBrightstar U.S., Inc. or the formation documents of Narbitec, LLC, (ii) except as set forth in the Prospectus, (after giving effect to any consents or waivers obtained) 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 or the Subsidiaries its subsidiaries is a party or otherwise bound or to which its or their property is subjectsubject and that is set forth as an exhibit to the Registration Statement, or (iii) any Delaware, Florida, New York or Federal statute, law, rule, regulationregulation or (iv) to the knowledge of such counsel, any judgment, order or decree applicable to the Company or the Subsidiaries its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over of the Company United States Federal government or the Subsidiaries States of Delaware, New York or any of its or their properties;Florida; and
(x) to the knowledge of such counsel and except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto)Prospectus, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and Delaware, the State of Delaware New York, the State of Florida or the Federal laws of the United States, to the extent they deem it deems proper and is specified in such opinion, upon the opinion of other counsel of good standing whom they believe it believes to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem it deems proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date. Such counsel shall also state that: Such counsel is not opining as to factual matters, and the character of determinations involved in the registration process is such that, other than as expressly set forth in their opinion, such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the information included in the Registration Statement and the Prospectus. Such counsel can advise you, however, that in and on the basis of its review of the Registration Statement and the Prospectus and such counsel's participation in their preparation, nothing has come to its attention that causes it to believe that the Registration Statement, including, if applicable, the Rule 430A Information, at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amendment or supplement was issued or at the Closing Date, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Each Selling Stockholder shall have requested and caused , counsel for such Selling Stockholder reasonably satisfactory to the Selling StockholderUnderwriters, to have furnished to the Representatives their opinion, opinion dated the Closing Date (if any Option Securities are to be delivered and paid for on the Closing Date) or the Option Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have has been duly authorized, executed and delivered by the such Selling Stockholder, the Custody Agreement is valid Stockholder and binding on the Selling Stockholder, and the such Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement Agreement, the Securities being sold by such the Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the such Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased upon the Underwriters' acquiring possession of stock certificates representing the Option Securities to be sold by such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided hereinSelling Stockholder, and that has had such Securities credited endorsed to the securities account or accounts of Underwriters and paying the purchase price therefor pursuant to Section 3, the Underwriters will acquire their respective interests in such Underwriters maintained with The Depository Trust Company or Option Securities (including, without limitation, all right such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17Selling Stockholder had to transfer such Securities) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the such Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the such Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the such Selling Stockholder or the fulfillment of the terms hereof by the such Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or or, if applicable, the charter or Bycharter, by-laws or other documents of the organization of such Selling Stockholder Stockholder, or the terms of any indenture or other agreement or instrument known to such counsel and to which the such Selling Stockholder or or, if applicable, any of its subsidiaries subsidiaries, is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the such Selling Stockholder or or, if applicable, any of its subsidiaries subsidiaries, of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the such Selling Stockholder or or, if applicable, any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablreliable and who are satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of such Selling Stockholder, responsible officers of such Selling Stockholder and public officials.
(d) The Company shall have requested and caused local counsel (reasonably acceptable to the Representatives) for each subsidiary listed on Schedule III hereto to have furnished to the Representatives their opinions, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) such subsidiary of the Company has been duly incorporated or formed, as applicable, and is validly existing as a corporation or other entity in good standing under the laws of the jurisdiction in which it is organized, with full power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus;
(ii) all the outstanding shares of capital stock of such subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of such subsidiary are owned by the Company either directly or through subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance; and
(iii) neither the issuance and sale of the Securities, the consummation of any other of the transactions contemplated hereby nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of such subsidiary pursuant to, (i) its charter, by-laws or similar organizational documents, (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 such subsidiary is a party or otherwise bound or to which its property is subject, (iii) any statute, law, rule or regulation of the jurisdiction in which such
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The ------------------------------------------------- obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇furnished to the Representatives the opinion of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ and Freidenrich LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies Company and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualificationqualification except for such failures to so qualify which, individually or in the aggregate, would not have a Material Adverse Effect;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessablenonassessable and were issued and sold in compliance with all applicable federal and state securities laws; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq Stock Market's National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the SecuritiesSecurities pursuant to the charter or by-laws of the Company, the corporation laws of the jurisdiction in which the Company is chartered or organized, any agreements or other documents filed as an exhibit to the Registration Statement or, to such counsel's knowledge, otherwise; and, except as set forth in the Prospectus, to such counsel's knowledge no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iviii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such they are descriptions of contracts, agreements or other legal documents, or refer to statements summarize of law or legal matters, agreements, documents or proceedings discussed thereinconclusions, are accurate in all material respects and fair summaries of such legal matters, agreements, documents or proceedingsfairly summarize the matters purported to be therein described;
(viv) such counsel has been advised by the staff of the Commission that the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and threatened;
(v) the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue issuance and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its SubsidiariesCompany, (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 or the Subsidiaries is a party or bound or to which its or their property is subjectsubject that is filed as an exhibit to the Registration Statement or is otherwise known to such counsel, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;; and
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under Statement pursuant to the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ any agreement or other document filed as an exhibit to the Company Registration Statement or otherwise known to such counsel, except for such rights which have been effectively waived. In addition, such counsel shall state that although such counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and (iv) assumed all does not assume any responsibility for, the accuracy, completeness or fairness of the outstanding stock options and common stock purchase warrants statements in the Registration Statement, such counsel has participated in the preparation of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies Registration Statement and the Company;
(xiii) the Merger was duly authorized by the CompanyProspectus, the Merging Entity including review and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws discussion of the State contents thereof, and such counsel has no reason to believe that on the Effective Date or at the Execution Time the Registration Statement contains or contained any untrue statement of Texas a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of its date and on the State Closing Date includes any untrue statement of ;
(xv) a material fact or omitted or omits to state a material fact necessary to make the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) statements therein, in the light of the Internal Revenue Code of 1986circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Actto which such counsel need express no opinion). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and California or the corporation law of the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date. The opinion of such counsel shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(c) The Representatives shall have received from _____________, patent counsel for the Company, such opinion or opinions, dated the Closing Date and addressed to the Representatives, that:
(i) To the knowledge of such counsel after reasonable inquiry, the Company owns, possesses, licenses or has other rights to use, on reasonable terms, all Intellectual Property necessary for the conduct of the Company's business as now conducted or as proposed in the Prospectus to be conducted.
(ii) To the knowledge of such counsel after reasonable inquiry (a) except as set forth in the Prospectus, there are no rights of third parties to any such Intellectual Property; (b) there is no material infringement by third parties of any such Intellectual Property; (c) there is no pending or threatened action, suit, proceeding or claim by others challenging the Company's rights in or to any such Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such claim; (d) there is no pending or threatened action, suit, proceeding or claim by others challenging the validity or scope of any such Intellectual Property, and such counsel is unaware of any facts which would form a reasonable basis for any such claim; (e) there is no pending or threatened action, suit, proceeding or claim by others that the Company infringes or otherwise violates any patent, trademark, copyright, trade secret or other proprietary rights of others, and the Company is unaware of any other fact which would form a reasonable basis for any such claim; (f) there is no U.S. patent or published U.S. patent application which contains claims that dominate or may dominate any Intellectual Property described in the Prospectus as being owned by or licensed to the Company or that interferes with the issued or pending claims of any such Intellectual Property; and (g) there is no prior art of which the Company is aware that may render any U.S. patent held by the Company invalid or any U.S. patent application held by the Company unpatentable which has not been disclosed to the U.S. Patent and Trademark Office.
(iii) The statements contained in the Prospectus under the captions "Risk Factors -- Patents and Proprietary Information" and "Business -- Patents and Proprietary Information," insofar as such statements summarize legal matters, agreements, documents, or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings.
(d) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ L.L.P.LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. The opinion or opinions of such counsel shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a wholeMaterial Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(ef) The Selling Stockholder Representatives shall have requested received letters addressed to them dated the date hereof and caused the Closing Date from Ernst & Young LLP, counsel independent certified public accountants, substantially in the forms heretofore approved by them.
(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) 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 condition (financial or otherwise), 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 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) and the Prospectus (exclusive of any supplement thereto).
(h) The Securities shall have been listed and admitted and authorized for trading on the Selling StockholderNasdaq Stock Market National Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(i) At the Execution Time, the Company shall have furnished to the Representatives their opinion, dated a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and all of the Company's securityholders.
(j) Prior to the Closing Date and addressed Date, the Company shall have furnished to the RepresentativesRepresentatives such further information, to certificates and documents as the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of Representatives may reasonably request. If any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablconditions specif
Appears in 1 contract
Sources: Underwriting Agreement (Enact Health Management Systems)
Conditions to the Obligations of the Underwriters. The -------------------------------------------------- obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPKing & Spalding, counsel for the CompanySprint, to have furnished to the Representatives their its opinion, dated the Closing Date and addressed to the Representatives, to the effect that:that:/1/
(i) each of the Company, ATX Technologies and ATX Europe GmbH Indenture under which the Securities will be issued (“ATX Europe”the "Applicable Indenture") has been duly incorporated and is validly existing as a corporation in good standing qualified under the Trust Indenture Act and, assuming the Indenture has been duly authorized, executed and delivered by the Company, constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and to general principles of equity, including, ____________________ /1/King & Spalding opinion may only be applicable for the initial shelf takedown without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law); and assuming that (when the Securities are executed and authenticated in accordance with the provisions of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued Applicable Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; ) the Securities being sold hereunder by the Company are will have been duly listedauthorized, executed and admitted and authorized for tradingdelivered, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in will constitute legal, valid and sufficient form; the holders of outstanding shares of capital stock binding obligations of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in benefits of the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstandingApplicable Indenture;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(vii) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 threatened, and the Registration Statement and the Final Prospectus (other than the financial statements and schedules and other financial and accounting or statistical information contained thereinincluded or incorporated by reference in, or omitted from, the Registration Statement and the Final Prospectus and the Form T-1 Statement of Eligibility and Qualification filed as an exhibit to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; and
(iii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Prospectus, will not be an "investment company" as defined in the Investment Company Act of 1940, as amended. In addition, such counsel shall state that although it has not undertaken, except as otherwise indicated in such opinion, to determine independently, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Registration Statement or the Final Prospectus, such counsel has no reason participated in the preparation of the Registration Statement and the Final Prospectus (but not in the preparation of any of the materials incorporated by reference therein, other than the Proxy Statement), and nothing has come to its attention that causes it to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 misleading, or that the Prospectus Final Prospectus, as of its date and on the Closing Date included Date, contained or includes contains any untrue statement of a material fact or omitted or omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, case other than the materials incorporated by reference in the Registration Statement and the Final Prospectus (except the Proxy Statement), the financial statements and schedules and other financial and accounting or statistical information contained included or incorporated by reference therein, or omitted therefrom, and the Form T-1 Statement of Eligibility and Qualification filed as an exhibit to the Registration Statement, as to which counsel need not make any statement). In rendering such opinion, such counsel need express no may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York, the Federal laws of the United States or the Delaware General Corporation Law, to the extent it deems proper and specified in such opinion), upon the opinion of other counsel of good standing whom it believes to be reliable and who are reasonably satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent it deems proper, on certificates of responsible officers of the Company or the PCS Companies and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.]
(c) The Company shall have requested [ ], in-house counsel for Sprint, to have furnished to the Representatives such counsel's opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of Sprint and its Material Subsidiaries has been duly incorporated and is validly existing as a corporation, limited liability company or partnership, as the case may be, in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate, limited liability company or partnership power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation or partnership and is in good standing under the laws of each jurisdiction where the nature of its properties or the conduct of its business requires such qualification, except where the failure to so qualify does not have a Material Adverse Effect;
(viii) all the outstanding shares of capital stock or ownership interests of each Material Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth or incorporated by reference in the Final Prospectus, all outstanding shares of capital stock or ownership interests of the Material Subsidiaries are owned by Sprint either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company's authorized equity capitalization is as set forth or incorporated by reference in the Final Prospectus; and the Securities conform in all material respects to the description thereof contained in the Final Prospectus;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving Sprint or any of its subsidiaries or its or their property, of a character required to be disclosed in the Registration Statement which is not disclosed in the Final Prospectus or incorporated by reference therein, and there is no contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required or incorporated by reference therein; and the statements included or incorporated by reference in the Final Prospectus under the heading[s] "Certain Federal Income Tax Consequences" and "[if the Final Prospectus includes or incorporates by reference a discussion of legal or regulatory matters or proceedings, add references to the appropriate sections of the Final Prospectus]" fairly summarize the matters therein described;
(v) this Agreement has Agreement, the Applicable Indenture and the Securities have been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viiivi) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky or securities laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Final Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ixvii) neither the execution and delivery of the Applicable Indenture, the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company Sprint or the Subsidiaries its subsidiaries pursuant to, (i) the charter or by-laws of the Company Sprint or its Material Subsidiaries, (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 Sprint or the Subsidiaries its subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company Sprint or the Subsidiaries its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company Sprint or the Subsidiaries its subsidiaries or any of its or their properties;properties that is known to such counsel, except, as to (ii) and (iii), for such conflicts, breaches, violations or impositions that could not reasonably be expected to have a Material Adverse Effect; and
(xviii) except as set forth in or contemplated in to the Prospectus (exclusive knowledge of any supplement thereto)such counsel, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law . In addition, such counsel shall state that although such counsel has not undertaken, except as otherwise indicated in such opinion, to determine independently, and did does not require the consent or approval of assume any third party that was not obtained;
(xii) in connection with the Mergerresponsibility for, the Company properly (A) exchanged all accuracy, completeness or fairness of the outstanding shares of ATX Technologies’ Series Astatements in the Registration Statement or the Final Prospectus, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock counsel has participated in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms preparation of the line Registration Statement and the Final Prospectus, including the documents incorporated by referenced therein, and nothing has come to such counsel's attention that causes such counsel to believe that on the Effective Date the Registration Statement contained any untrue statement of credit issued 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 on the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (in each case other than the financial statements and schedules and other accounting or statistical information included or incorporated by ▇▇▇▇▇▇▇▇▇ reference therein, or omitted therefrom, and the Form T-1 Statement of Eligibility and Qualification filed as an exhibit to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986Registration Statement, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Actto which counsel need not make any statement). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or New York, the Federal laws of the United StatesStates (except with respect to regulatory and tax matters), the Delaware General Corporation Law or the laws of the State of Kansas, to the extent they deem he deems proper and specified in such opinion, upon the opinion (including with respect to regulatory and tax matters) of other counsel of good standing whom they believe he believes to be reliable and who are reasonably satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem he deems proper, on certificates of responsible officers of the Company and the PCS Companies and public officials. References to the Final Prospectus in this paragraph (bc) shall also include any supplements thereto at the Closing Date.
(cd) The Representatives shall have received from Cravath, Swaine & ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Applicable Indenture, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, Sprint signed by the Chairman an executive officer (meaning those officers who file reports pursuant to Section 16(b) of the Board or the President Exchange Act) and the principal financial or accounting officer of the CompanySprint, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date 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 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 or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company Sprint and its Subsidiariessubsidiaries, 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 Final Prospectus (exclusive of any supplement thereto).
(ef) The Selling Stockholder Company shall have requested and caused , counsel for the Selling Stockholder, Ernst & Young LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablsubstance
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder 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 Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPAkerman, Senterfitt & Eidson, P.A., counsel for the Company, to have furnished to the Representatives t▇▇ ▇▇▇resentatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the CompanyCompany and the Subsidiaries (other than Aviation Sales Company FSC, ATX Technologies and ATX Europe GmbH (“ATX Europe”Ltd., a Barbados corporation which has no material operations or assets) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure so to qualify does not have a Material Adverse Effect;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe each Subsidiary (other than Aviation Sales Company FSC, Ltd., a Barbados corporation which has no material operations or assets) have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe the Subsidiaries are owned of record and, to the best knowledge of such counsel after reasonable inquiry, beneficially by the Company either directly or through wholly owned subsidiaries Subsidiaries free and clear of any perfected security interest and, to the best knowledge of such counsel, after due reasonable inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock (including the Securities being sold hereunder by the Selling Stockholders) have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold by the Selling Stockholders are duly listed, and admitted and authorized for trading, on the New York Stock Exchange and the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distributionissuance, on the Nasdaq National MarketNew York Stock Exchange; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or or, to the best knowledge of such counsel after due inquiry, other rights to subscribe for the Securities; and, except as set forth in the Prospectus, to the best knowledge of such counsel after due inquiry, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the best knowledge of such counselcounsel after reasonable inquiry, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included or incorporated by reference in the Prospectus under the headings “Description "United States Federal Tax Considerations," "Management's Discussion and Analysis of Financial Condition and Results of Operations - Liquidity and Capital StockResources - Environmental,” “" "- Lease for New Facility," "- Credit Facility," "- Senior Subordinated Notes," and "- Other Notes," "Business - Government Regulation and Traceability" and "- Legal Proceedings" and the statements included in the Form 10-K for the year ended December 31, 1998, under the heading "Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements " fairly summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedingsthe matters therein described;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date or at the date the Registration Statement was last deemed amended, Execution Time the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law); and the Securities have been duly authorized and, when executed 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 description of the Securities in the Prospectus will conform in all material respects to the Securities;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict in any material respect with, result in a breach or violation of, in any material respect of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its the Subsidiaries, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument known to such counsel after reasonable inquiry to which the Company or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rulerule or regulation (assuming compliance with all applicable state securities and Blue Sky laws), regulation, or any judgment, order or decree known to such counsel after reasonable inquiry applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) to the best knowledge of such counsel after reasonable inquiry, except as set forth in or contemplated described in the Prospectus (exclusive of any supplement thereto)Prospectus, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) to the Merger complied with applicable law and did not require best knowledge of such counsel after reasonable inquiry, neither the consent or approval Company nor any of the Subsidiaries is in violation of any third party that was not obtainedlaw, ordinance, administrative or governmental rule or regulation applicable to the Company or any of the Subsidiaries or of any decree of any court or governmental agency or body having jurisdiction over the Company or any of the Subsidiaries;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all each of the outstanding stock options Subsidiaries (other than Aviation Sales Company FSC, Ltd., a Barbados corporation which has no material operations or assets) have full corporate power and common stock purchase warrants authority, and all necessary governmental authorizations, approvals, orders, licenses, certificates, franchises and permits of ATX Technologies. The foregoing actions and from all government regulatory officials and bodies (except where the failure so to have any such authorizations, approvals, orders, licenses, certificates, franchises or permits, individually or in connection with the Merger were effected aggregate, would not have a Material Adverse Effect and except as may be required under the Blue Sky laws or state securities laws) to own their respective properties and to conduct their respective businesses as now being conducted, as described in full compliance with applicable law and any contractual obligations of ATX Technologies and the CompanyProspectus;
(xiii) such counsel is not aware of any material claim or challenge by any other person to the Merger was duly authorized rights of the Company and the Subsidiaries with respect to any patents, trademarks, trademark registrations, service marks, service mark registrations, trade names, copyrights, license▇, ▇nventions, trade secrets and rights described in the Prospectus as being owned by them or any of them or necessary for the Company, the Merging Entity and ATX Technologies;conduct of their respective businesses; and
(xiv) the Merger Company is legal, effective and valid and was consummated in accordance with not required to obtain stockholder consent for the laws issuance or offering of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the ActSecurities. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State States of Texas Florida and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives Selling Stockholders shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall also have requested and caused Akerman, Senterfitt & Eidson, P.A., counsel for the Selling StockholderStockholders, to have furnished f▇▇▇▇▇▇ed to the Representatives their opinion, opinion dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling StockholderStockholders, the Custody Agreement is valid and binding on the Selling Stockholder, Stockholders and the each Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that the delivery by each Underwriter acquires its interest in Selling Stockholder to the several Underwriters of certificates for the Securities it has purchased from the being sold hereunder by such Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making against payment therefor as provided herein, will pass good and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) marketable title to such Securities purchased by such Underwriterto the several Underwriters, free and no action based on an adverse claim (within the meaning clear of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securitiesall liens, encumbrances, equities and claims whatsoever;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the any Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the any Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the any Selling Stockholder or the fulfillment of the terms hereof by the any Selling Stockholder will conflict in any material respect with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder Stockholder, if applicable, or the terms of any material indenture or other agreement or instrument known to such counsel and to which the any Selling Stockholder or any of its subsidiaries subsidiaries, if applicable, is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the any Selling Stockholder or any of its subsidiaries subsidiaries, if applicable, of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the any Selling Stockholder or any of its subsidiaries, if applicable. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware Florida or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablreliable and who are satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers, if applicable, of the Selling Stockholders and public officials.
(d) The Representatives shall
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Guarantor 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 and the Selling Stockholder Guarantor made in any certificates pursuant to the provisions hereof, to the performance by each of the Company and the Selling Stockholder Guarantor of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company There shall have requested and caused be furnished to the Representatives the opinion of Vins▇▇ & ▇▇▇▇lki▇▇ ▇.▇▇▇▇ LLP.P., counsel for the Company, to have furnished to Company and the Representatives their opinionGuarantor, dated the Closing Date and addressed to the Representatives, limited to the federal laws of the United States, the Delaware General Corporation Law and the laws of the State of Texas, and in form and substance satisfactory to the Representatives, to the effect that:
(i) each Each of the Company, ATX Technologies Company and ATX Europe GmbH (“ATX Europe”) the Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full State of Delaware and has corporate power and authority to own or lease, as the case may be, and to operate lease its properties and to conduct its business as described in the Prospectus, and is duly qualified to do business Final Prospectus as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly amended or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrancesupplemented;
(iii) The Indenture and the First Supplemental Indenture (the "First Supplemental Indenture") to be dated as of January 13, 1998, among the Company’s authorized capitalization is , the Guarantor and the Trustee have been duly authorized, executed and delivered by the Company and the Guarantor, as set forth in the Prospectusapplicable; the capital stock Indenture has been duly qualified under the Trust Indenture Act; and, assuming due authorization, execution and delivery thereof by each party thereto other than the Company and the Guarantor, the Indenture and the First Supplemental Indenture constitute legal, valid and binding obligations of the Company conforms and the Guarantor enforceable against the Company and the Guarantor in all material respects accordance with their terms (subject, as to enforcement of legal remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and, as to remedies of specific performance and injunctive and other forms of equitable relief, to equitable defenses or principles and to the description thereof contained in discretion of the Prospectuscourt before which any proceeding may therefor be brought); the outstanding shares of Common Stock The Notes have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, executed and, when issued authenticated in accordance with the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listedconstitute legal, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock binding obligations of the Company are not entitled to preemptive the benefits of the Indenture and enforceable against the Company in accordance with their terms (subject, as to enforcement of legal remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to subscribe for the Securities; time in effect and, except as to remedies of specific performance and injunctive and other forms of equitable relief, to equitable defenses or principles and to the discretion of the court before which any proceeding may therefor be brought). The Guarantees have been duly authorized and executed and constitute the legal, valid and binding obligations of the Guarantor, enforceable against the Guarantor in accordance with its terms (subject, as to enforcement of legal remedies, to applicable bankruptcy, reorganization, solvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and, as to remedies of specific performance and injunctive and other forms of equitable relief, to equitable defenses or principles and to the discretion of the court for which any proceeding may therefor be brought);
(iv) To the best of such counsel's knowledge and other than as set forth in the Final Prospectus, there are no options, warrants legal or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no governmental proceedings pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving to which the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to of which its or their any property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to of the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its Subsidiaries is the subject that would individually or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) aggregate result in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on change in the condition (financial or otherwise), prospectsbusiness, earnings, business prospects or properties results of operations of the Company and its Subsidiaries, taken Subsidiaries considered as a wholewhole ("Subsidiaries" means (A) any corporation in which the Company, whether directly or not arising from transactions in the ordinary course of businessindirectly, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 owns more than 50% of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other outstanding voting securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17B) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction limited partnership in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or boundCompany, or any judgmentSubsidiary of the Company, order or decree known to such counsel to be applicable to is the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas general partner and the State of Delaware Company, directly or the Federal laws indirectly, owns a majority of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliabllimited partnership interests);
Appears in 1 contract
Sources: Underwriting Agreement (Pioneer Natural Resources Usa Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Underwriters' Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and any settlement date pursuant to Section 3 hereofas of the Closing Date, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will shall have become effective not later than (i) 6:00 PM P.M. New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM P.M. New York City time on such date or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM P.M. New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be Prospectus shall 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 Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused furnished to the Representatives:
(i) an opinion of Weil, Gotshal & Manges LLP, counsel to the Company, or such other counsel of or to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, to have furnished y as shall be reasonably satisfactory to the Representatives their opinionRepresentatives, dated the Closing Date and addressed to the RepresentativesDate, to the effect that:
(iA) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and Company is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedState of Delaware, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iiiB) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms Securities conform in all material respects to the description thereof contained in the Prospectus;
(C) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws affecting creditors' rights generally from time to time in effect, and subject, as to enforceability, to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and the outstanding shares of Common Stock Securities have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; in the Securities being sold hereunder case of the Underwriters' Securities, or by the Company are duly listedpurchasers thereof pursuant to Delayed Delivery Contracts, and admitted and authorized for tradingin the case of any Contract Securities, subject to official notice of issuance and evidence of satisfactory distributionwill constitute legal, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock binding obligations of the Company are not entitled to preemptive the benefits of the Indenture (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, and other similar laws affecting creditors' rights generally from time to time in effect, and subject, as to enforceability, to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstandingat law);
(ivD) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(vE) the Registration Statement has and any amendments thereto have become effective under the Act; any required filing of the Prospectus, Prospectus and any supplements thereto, supplement thereto pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement Statement, as amended, has been issued, and no proceedings for that purpose have been instituted or threatened and are pending or contemplated under the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion)Act;
(viF) this Agreement has and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viiiG) no consent, approval, authorization, approval or other action by, and no notice to, consent of, order of, or filing with with, any New York, Delaware corporate or order of any court Federal governmental authority or governmental agency or regulatory body is required in connection with for the consummation of the transactions contemplated hereinherein or in any Delayed Delivery Contracts, except such as have been obtained under the Act, such filings as may be required under the Exchange Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ixH) neither none of the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor contemplated or the fulfillment of the terms hereof, nor the consummation hereof or of the Merger any Delayed Delivery Contracts will conflict with, result in a breach or violation of, or imposition of any lienconstitute a default under, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan material indenture or other material agreement or other agreement, obligation, condition, covenant or instrument known to such counsel and to which the Company or the Subsidiaries any of its subsidiaries is a party or bound or to which its or their property is subjectbound, or (iii) any statute, law, rule, regulation, judgment, order decree or decree regulation known to such counsel to be applicable to the Company or the Subsidiaries any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, body or arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Actsubsidiaries. In rendering such opinion, such counsel Weil, Gotshal & Manges LLP may rely (A) as to matters involving the application of laws of any ▇▇ ▇▇y jurisdiction other than the State of Texas and the State of Delaware New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters Underwriters; and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References .
(ii) a letter of Weil, Gotshal & Manges LLP dated the Closing Date to the Prospectus effect that, having participat▇▇ ▇▇ conferences with certain officers of, and with the accountants for, the Company and having made certain inquiries and investigations in this paragraph (b) shall also include any supplements thereto connection with the preparation of the Registration Statement and the Prospectus, such counsel has no reason to believe that the Registration Statement at the Effective Date contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus on the Closing DateDate includes any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (in each case except for the financial statements and the notes thereto and other accounting, financial or statistical data included therein, as to which such counsel need express no view).
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.[ ____________ ], counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Indenture, any Delayed Delivery Contracts, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer (or Vice President and Treasurer) of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement, the Prospectus, any supplements supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date 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 Statement, as amended, 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 Prospectus (exclusive of any supplement thereto)Prospectus, there has been no material adverse effect on change in the condition (financial or otherwiseother), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a wholesubsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto)Prospectus.
(e) The Selling Stockholder At the Closing Date, KPMG LLP shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opiniona letter or letters (which may refer to a letter previously delivered to one or more of the Representatives), dated as of the Closing Date Date, in form and addressed substance reasonably satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder, that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) this Agreement in their opinion the audited financial statements and schedules thereto included or incorporated in the Registration Statement and the Custody Agreement Prospectus and Power reported on by them (it being understood that KPMG LLP has not reported on any financial statements for periods prior to the fiscal year ended June 30, 2002) comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, Exchange Act and the Selling Stockholder has full legal right published rules and authority regulations thereunder with respect to sell, transfer financial statements and deliver financial statement schedules included or incorporated in annual reports on Form 10-K under the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderExchange Act;
(ii) assuming that each Underwriter acquires its interest on the basis of a reading of the unaudited financial statements included or incorporated in the Securities it has purchased from Registration Statement and the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 Prospectus and of the UCC), each Underwriter that has purchased such Securities delivered on latest unaudited financial statements made available by the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts 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 such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter significance with respect to the comments set forth in such Securities;letter; a reading of the minutes of the meetings of the stockholders, directors and executive committees of the Company and the subsidiaries since the date of the latest audited balance sheet, through a specified date not more than five business days prior to the date of the letter; 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 the date of the most recent financial statements incorporated in the Registration Statement and the Prospectus, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated in the Registration Statement and the Prospectus do not comply as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect to financial statements included or incorporated in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not stated on a basis substantially consistent with that of the audited financial statements included or incorporated in the Registration Statement and the Prospectus; or
(2) with respect to the period subsequent to the date of the most recent financial statements incorporated in the Registration Statement and the Prospectus, there were, at a specified date not more than five business days prior to the date of the letter, any increases in long-term debt of the Company and its subsidiaries or decreases in the capital stock of the Company or decreases in the stockholders' equity of the Company and its subsidiaries as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated in the Registration Statement and the Prospectus, except in all instances for increases 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; and
(iii) no consent, approval, authorization or order they have performed certain other procedures as a result of any court or governmental agency or body is required for which they determined that the consummation by the Selling Stockholder information described in a schedule to be delivered on behalf of the transactions contemplated hereinUnderwriters of an accounting, except such financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general ledger of the Company) set forth in the Registration Statement, as may amended, the Prospectus, as amended or supplemented, and in Exhibit 12 to the Registration Statement (including selected accounting, financial or statistical information included or incorporated in the Company's Annual Report on Form 10-K incorporated in the Prospectus or any of the Company's Quarterly Reports on Form l0-Q incorporated therein), agrees with the general ledger of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplements thereto at the date of the letter.
(f) Subsequent to the respective dates of which information is given in the Registration Statement and the Prospectus, there shall not have been obtained under (i) any change or decrease specified in the Act letter or letters referred to in paragraph (e) of this Section 5 or (ii) any change, or any development involving a prospective change, in or affecting the business or properties of the Company and such its subsidiaries the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as may be required under the blue sky laws of any jurisdiction in connection to make it impractical or inadvisable to proceed with the purchase and distribution public offering or the delivery of the Securities as contemplated by the Registration Statement and the Prospectus.
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) The Company shall have accepted Delayed Delivery Contracts in any case where sales of Contract Securities arranged by the Underwriters and have been approved by the Company.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such other approvals (rating or of a possible change in any such rating that does not indicate the direction of the possible change. If any of the conditions specified in such opinion) as this Section 5 shall not have been obtained; and
(iv) neither the sale fulfilled in all material respects when and as provided in this Agreement, or if any of the Securities being sold 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 their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Selling Stockholder nor the consummation Representatives. Notice of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to cancellation shall be applicable given to the Selling Stockholder Company in writing or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body by telephone or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified telegraph confirmed in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablwriting.
Appears in 1 contract
Sources: Underwriting Agreement (Estee Lauder Companies Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder 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 Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Irell & ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each The Company is a corporation in good standing under the laws of the CompanyState of Delaware, ATX Technologies with the corporate power and ATX Europe GmbH authority to own its properties and to conduct its business as described in the Prospectus. The Company is qualified to do business as a foreign corporation in good standing in all other jurisdictions listed on an exhibit thereto;
(“ATX Europe”ii) has been duly incorporated and Each domestic subsidiary of the Company is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedof its incorporation, with full the corporate power and authority to own or lease, as the case may be, and to operate its properties and to conduct its business as described in the Prospectus, and ; each domestic subsidiary is duly qualified to do business as a foreign corporation and is in good standing under in all other jurisdictions listed on an exhibit thereto; and all of the laws of each jurisdiction which requires such qualification;
(ii) all the issued and outstanding shares of capital stock of ATX Technologies and ATX Europe have each domestic subsidiary has been duly authorized and validly authorized and issued and are is fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock (including the Option Securities being sold hereunder by the Selling Stockholders) have been duly and validly authorized and issued and are fully paid and nonassessable; the Underwritten Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company and the Selling Stockholders are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; to the knowledge of such counsel, the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, to the knowledge of such counsel, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) Neither the Company nor any of the subsidiaries is and, neither will be, after giving effect to the offering and sale of the Underwritten Securities and the application of the proceeds of the sale of the Underwritten Securities as described in the Prospectus, an "investment company" as defined in the Investment Company Act of 1940, as amended;
(v) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court pursuant to any statute, decisional law, rule or regulation, that in such counsel's experience is customarily applicable to transactions of the nature contemplated by the Prospectus ("Applicable Laws") is required for the consummation of the transactions contemplated by this Agreement or the Prospectus or otherwise in connection with the purchase and distribution of the Securities by the Underwriters, except such consents, approvals, authorizations, registrations, orders or filings as may be required under state securities laws and the order of the Commission declaring the Registration Statement effective;
(vi) To the knowledge of such counsel and other than as set forth in the Prospectus, there are no pending actions, suits or proceedings against or affecting the Company, any of the Company's subsidiaries or any of their respective properties that would, individually or in the aggregate, have a material adverse effect, or would materially and adversely affect the ability of the Company to perform its obligations under this Agreement or the Prospectus, or which are otherwise material in the context of the sale of the Securities; and no such actions, suits or proceedings are, to the knowledge of such counsel, there is no pending threatened or threatened actioncontemplated; and, suit or proceeding by or before any court or governmental agencyto the knowledge of such counsel, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “"Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” " "Description of Certain Indebtedness" and “Underwriting”, in each case "U.S. Federal Tax Considerations For Non-U.S. Holders" insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(vvii) Neither the issue and sale of the Underwritten Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of terms hereof will result in a breach or violation of any of the terms or provisions of, or constitute a default under, (a) any Applicable Laws or order known to such counsel of any governmental agency or body or any court having jurisdiction over the Company or any of its subsidiaries or any of their respective properties, (b) any agreement or instrument listed on an exhibit thereto (the "Reviewed Agreements") or (c) the charter, by-laws or other organizational documents of the Company or any of its subsidiaries; and the Company has full power and authority to authorize, issue and sell the Underwritten Securities as contemplated by this Agreement, except with respect to clauses (a) and (b) above for breaches or violations that would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business;
(viii) This Agreement has been duly authorized, executed and delivered by the Company;
(ix) To the knowledge of such counsel, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement except for the Selling Stockholders named in Schedule II and whose participation satisfies and is in compliance with their rights and is set forth in the Prospectus, and the holders of outstanding shares of capital stock of the Company are not entitled to statutory preemptive or, to the knowledge of such counsel, other similar contractual rights to subscribe for the Underwritten Securities; and
(x) The Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, amended the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State States of Texas California, Delaware and the State of Delaware New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives Company shall have received from requested and caused ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.Means, counsel for Vice President and General Counsel of the UnderwritersCompany, such opinion or opinionsto have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale effect that:
(i) The Company has been duly incorporated under the laws of the Securities, State of Delaware;
(ii) Each of the Registration Statement, subsidiaries has been duly incorporated in its state of incorporation as set forth in an exhibit thereto;
(iii) Each of the subsidiaries has the corporate power and authority to own its properties and conduct its business as described in the Prospectus; and
(iv) The statements in the Prospectus under the heading "Business—Legal Proceedings" insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings. In rendering such opinion, such counsel may rely (together with A) as to matters involving the application of laws of any supplement theretojurisdiction other than the States of Delaware and New York or the Federal laws of the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing whom he believes to be reliable and who are satisfactory to counsel for the Underwriters and (B) and other related as to matters as of fact, to the Representatives may reasonably requireextent deemed proper, and on certificates of responsible officers of the Company and public officials. References to the Selling Stockholder Prospectus in this paragraph (c) shall have furnished to such counsel such documents as they request for also include any supplements thereto at the purpose of enabling them to pass upon such mattersClosing Date.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder Stockholders shall have requested and caused Irell & ▇▇▇▇▇▇▇ LLP, counsel for the Selling StockholderStockholders, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) Each of this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the each Selling Stockholder, Stockholder and this Agreement and the Custody Agreement and Power of Attorney is valid and binding on the each Selling Stockholder, Stockholder and the each Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement and Power of Attorney the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming Assuming that each Underwriter acquires its interest in the Securities it has purchased from the such Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), that each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters Underwriter maintained with The Depository Trust Company or such other securities intermediary intermediary, each Underwriter will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no No consent, approval, authorization or order of of, or filing with, any court or governmental agency or body or any court pursuant to any statute, decisional law, rule or regulation, that in such counsel's experience is customarily applicable to transactions of the nature contemplated by the Prospectus is required for the consummation by the each Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither Neither the sale of the Securities being sold by the any Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the any Selling Stockholder or the fulfillment of the terms hereof by the any Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or Byby-laws of the Selling Stockholder or the terms of any indenture or other material agreement or instrument known to such counsel and to which the any Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the any Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the any Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State States of Texas California, Delaware and the State of Delaware New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablreliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of the Selling Stockholders and public officials.
(e) The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and e
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Underwriters' Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and any settlement date pursuant to Section 3 hereofas of the Closing Date, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will shall have become effective not later than (i) 6:00 PM P.M. New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM P.M. New York City time on such date or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM P.M. New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be Prospectus shall 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 Statement, as amended from time to time, 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 their opinionRepresentatives:
(i) the opinion of the General Counsel, an Assistant General Counsel or an Associate General Counsel of the Company, dated the Closing Date and addressed to the RepresentativesDate, to the effect that:
(iA) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedState of New York, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction within the United States which requires such qualificationqualifications wherein it owns or leases material properties or conducts material business;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iiiB) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms Securities conform in all material respects to the description thereof contained in the Prospectus;
(C) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws affecting creditors' rights generally from time to time in effect, and subject, as to enforceability, to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and the outstanding shares of Common Stock Securities have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; in the Securities being sold hereunder case of the Underwriters' Securities, or by the Company are duly listedpurchasers thereof pursuant to Delayed Delivery Contracts, and admitted and authorized for tradingin the case of any Contract Securities, subject to official notice of issuance and evidence of satisfactory distributionwill constitute legal, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock binding obligations of the Company are not entitled to preemptive or the benefits of the Indenture (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, and other similar laws affecting creditors' rights generally from time to subscribe for the Securities; and, except as set forth time in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstandingeffect);
(ivD) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit theretoexhibit, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(vE) the Registration Statement has and any amendments thereto have become effective under the Act; any required filing of the Prospectus, Prospectus and any supplements thereto, supplement thereto pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement Statement, as amended, has been issued, no proceedings for that purpose have been instituted or threatened and are pending or contemplated under the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion)Act;
(viF) this Agreement has and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viiiG) no consent, approval, authorization, approval or other action by, and no notice to, consent of, order of, or filing with with, any United States Federal or order of any court New York governmental authority or governmental agency or regulatory body is required in connection with for the consummation of the transactions contemplated hereinherein or in any Delayed Delivery Contracts, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ixH) neither such counsel has no reason to believe that (1) the Registration Statement and the Prospectus (except the financial statements and the notes thereto and other information of an accounting or financial nature included therein, and the Statement of Eligibility (Form T-1) included as an exhibit to the Registration Statement, as to which such counsel need express no view) were not appropriately responsive in all material respects to requirements of the Act and the applicable rules and regulations of the Commission thereunder and (2) the Registration Statement or any amendment thereof at the time it became effective contained any 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 Prospectus, as amended or supplemented, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (in each case except for the financial statements and the notes thereto and other information of an accounting or financial nature included therein, as to which such counsel need express no view); and
(I) none of the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor contemplated or the fulfillment of the terms hereof, nor the consummation hereof or of the Merger any Delayed Delivery Contracts will conflict with, result in a breach or violation of, or imposition of any lienconstitute a default under, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan indenture or other agreement or other agreement, obligation, condition, covenant or instrument known to such counsel and to which the Company or the Subsidiaries any of its subsidiaries is a party or bound or to which its or their property is subjectbound, or (iii) any statute, law, rule, regulation, judgment, order decree or decree regulation known to such counsel to be applicable to the Company or the Subsidiaries any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, body or arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its subsidiaries. The statements described in one or their properties;
more of paragraphs (x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement theretoB), no holders (C), (E), (F), (G) and (H)(1) of securities this subsection 5(b)(i) may be omitted from the opinion of such counsel; provided, however, that in such event the Company shall also have rights furnished to the registration Representatives the corresponding opinion or letter of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇, Swaine & ▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by ▇▇▇▇, counsel for the Company, the Merging Entity and ATX Technologies;described in subsection 5(b)(ii) or 5(b)(iii) immediately following.
(xivii) in the Merger event that the statements described in one or more of paragraphs (B), (C), (E), (F) or (G) of foregoing subsection 5(b)(i) is legalomitted from the opinion delivered pursuant to such subsection, effective and valid and was consummated in accordance with the laws opinion of ▇▇▇▇▇▇▇, Swaine & ▇▇▇▇▇, counsel for the Company, dated the Closing Date, to the effect of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Actstatements so omitted. In rendering such opinionopinions, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters Underwriters; and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References .
(iii) in the event that the statements in paragraph (H)(1) of subsection 5(b)(i) are omitted from the opinion provided pursuant to such subsection, a letter of ▇▇▇▇▇▇▇, Swaine & ▇▇▇▇▇ dated the Closing Date to the effect that, having participated in conferences with certain officers of, and with the accountants for, the Company and having made certain inquiries and investigations in connection with the preparation of the Registration Statement and the Prospectus, such counsel has no reason to believe that (i) the Registration Statement and the Prospectus (except the financial statements and the notes thereto and other information of an accounting or financial nature included therein, and the Statement of Eligibility (Form T-1) included as an exhibit to the Registration Statement, as to which such counsel need express no view) were not appropriately responsive in this paragraph all material respects with requirements of the Act and the applicable rules and regulations of the Commission thereunder and (bii) shall also include any supplements thereto the Registration Statement at the Effective Date contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus on the Closing DateDate includes any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (in each case except for the financial statements and the notes thereto and other information of an accounting or financial nature included therein, as to which such counsel need express no view).
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇ L.L.P.▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Indenture, any Delayed Delivery Contracts, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer (or Vice President and Treasurer) of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement, the Prospectus, any supplements supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date 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 Statement, as amended, 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 Prospectus (exclusive of any supplement thereto)Prospectus, there has been no material adverse effect on change in the condition (financial or otherwiseother), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a wholesubsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto)Prospectus.
(e) The Selling Stockholder At the Closing Date, Price Waterhouse LLP shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opiniona letter or letters (which may refer to a letter previously delivered to one or more of the Representatives), dated as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder, that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) this Agreement in their opinion the audited financial statements and schedules thereto included or incorporated in the Registration Statement and the Custody Agreement Prospectus and Power reported on by them comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, Exchange Act and the Selling Stockholder has full legal right published rules and authority regulations thereunder with respect to sell, transfer financial statements and deliver financial statement schedules included or incorporated in annual reports on Form 10-K under the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderExchange Act;
(ii) assuming that each Underwriter acquires its interest on the basis of a reading of the unaudited financial statements included or incorporated in the Securities it has purchased from Registration Statement and the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 Prospectus and of the UCC), each Underwriter that has purchased such Securities delivered on latest unaudited financial statements made available by the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts 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 such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter significance with respect to the comments set forth in such Securities;letter; a reading of the minutes of the meetings of the stockholders, directors and executive committees of the Company and the Subsidiaries since the date of the latest audited balance sheet, through a specified date not more than five business days prior to the date of the letter; 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 the date of the most recent financial statements incorporated in the Registration Statement and the Prospectus, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated in the Registration Statement and the Prospectus do not comply as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect to financial statements included or incorporated in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not stated on a basis substantially consistent with that of the audited financial statements included or incorporated in the Registration Statement and the Prospectus; or
(2) with respect to the period subsequent to the date of the most recent financial statements incorporated in the Registration Statement and the Prospectus, there were, at a specified date not more than five business days prior to the date of the letter, any increases in long-term debt of the Company and its subsidiaries or decreases in the capital stock of the Company or decreases in the stockholders' equity of the Company and its subsidiaries as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated in the Registration Statement and the Prospectus, except in all instances for increases 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; and
(iii) no consent, approval, authorization or order they have performed certain other procedures as a result of any court or governmental agency or body is required for which they determined that the consummation by the Selling Stockholder information described in a schedule to be delivered on behalf of the transactions contemplated hereinUnderwriters of an accounting, except such as may have been obtained under financial or statistical nature (which is limited to accounting, financial or statistical information derived from the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution general ledger of the Securities by Company) set forth in the Underwriters and such other approvals (specified in such opinion) Registration Statement, as have been obtained; and
(iv) neither amended, the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict withProspectus, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablas
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines 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 Stockholder 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 Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b424(6); and no stop order suspending the effectiveness of the Registration Statement 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 their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) Company has been duly incorporated or formed, as applicable, and is validly existing as a corporation or other entity in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;set forth opposite its name on Exhibit B hereto.
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Final Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Final Prospectus; the outstanding shares of Common Stock (including the Securities being sold hereunder by the Selling Stockholders) have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold by the Selling Stockholders are duly listed, and admitted and authorized for trading, on the Nasdaq National Market and the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distributionissuance, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to statutory preemptive or or, to such counsel's knowledge, other similar contractual rights to subscribe for the Securities; and, except as set forth in the Final Prospectus, to such counsel's knowledge no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iviii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and and, to the knowledge of such counsel, there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(viv) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the respective rules thereunder; and based upon such counsel counsel's representation of the Company, nothing has no reason come to its attention that causes it to believe that on the Effective Date or the date the Registration Statement was last deemed amended, amended the Registration Statement contained any 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 on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(viv) this Agreement has been duly authorized, executed and delivered by the Company;
(viivi) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Prospectus, will not be, an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viiivii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Final Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ixviii) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or charter, by-laws or similar organization documents of the Company or its SubsidiariesCompany, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, and which is set forth on Exhibit C hereto or (iii) any statute, law, rulerule or regulation or, regulationto such counsel's knowledge, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;; and
(xix) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto)Prospectus, to such counsel's knowledge, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and New York, the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Each Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, satisfactory to Citigroup Global Markets Inc. to have furnished to the Representatives their opinion, an opinion dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the such Selling Stockholder, the Custody Agreement is valid and binding on the such Selling Stockholder, Stockholder and the such Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the such Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the such Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the such Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the such Selling Stockholder or the fulfillment of the terms hereof by the such Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law generally applicable to transactions of the type described in this Agreement or the charter or Bycharter, by-laws or similar organizational documents, of the such Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or boundStockholder, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiariesas applicable. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablreliable and who are satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of such Selling Stockholder or responsible officers of such Selling Stockholder, as applicable, and public officials.
(d) The Representatives shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the 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 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 Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus 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 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 Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, 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 Final Prospectus (exclusive of any supplement thereto).
(f) Each Selling Stockholder shall have furnished to the Representatives a certificate, signed by such Selling Stockholder or, if applicable, the Chairman of the Board or the President and the principal financial or accounting officer of such Selling Stockholder (or by officers of such Selling Stockholder performing similar functions) dated the Closing Date, to the effect 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 Company shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for the nine-month period ended September 30, 2003, and 2004, as at September 30, 2003, and 2004, 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 and included or incorporated by reference in the Registration Statement and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the nine-month period ended September 30, 2003, and September 30, 2004, and as at September 30, 2003, and 2004, incorpo
Appears in 1 contract
Sources: Underwriting Agreement (Audible Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder 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 Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) All the Reorganization Transactions, as contemplated by the Reorganization Agreements, shall have been consummated.
(c) Each of the Reorganization Agreements is in full force and effect, and there shall have been no amendments, alterations, modifications or waivers of any provisions thereof since the date of this Agreement.
(d) The Company shall have delivered notice to the holders of the HMP Warrants, stating that such warrants shall be exchanged for Common Stock 30 days from the date of this Agreement and there shall have been no amendments, alterations, modifications or waivers of any provisions of any agreement governing the terms of such exchange since the date of this Agreement.
(e) The Company shall have requested and caused ▇▇▇▇▇▇ & ▇▇ ▇▇▇▇▇ LLPL.L.P., counsel for the Company, to have furnished to the Representatives their its opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) the Company has been duly organized and the Company and each of the Company, ATX Technologies and ATX Europe GmbH entities listed on Schedule III hereto (“ATX Europe”the "Scheduled Subsidiaries") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedorganized (to the extent such concept exists), with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is has the status set forth in good standing under Schedule IV hereto set forth opposite the laws of each jurisdiction which requires such qualificationjurisdictions listed in Schedule IV hereto;
(ii) all the outstanding membership interests, shares of capital stock or other ownership interests, as the case may be, of ATX Technologies Huntsman Holdings and ATX Europe each Scheduled Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are the Scheduled Subsidiaries will be owned of record upon the consummation of the Reorganization Transactions by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrancesubsidiaries;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and and, when issued and are upon consummation of the Reorganization Transactions, will be fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorizedauthorized by the Company, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the dividends on the Securities being sold hereunder have been duly and validly declared by the Company are duly listed, and admitted and authorized for tradingCompany, subject to official notice the Company's having sufficient lawful funds available for the payment of issuance and evidence such dividends at the time of satisfactory distribution, on the Nasdaq National Marketsuch payment; the certificates for shares of Common Stock issuable upon conversion of the Securities are in valid have been duly and sufficient formvalidly authorized and reserved for issuance by the Company; the holders of outstanding shares of capital stock or other ownership interests, as the case may be, of the Company are that will be outstanding upon consummation of the Reorganization Transactions will not be entitled to preemptive or other rights under the Company's charter, by-laws, Applicable Laws or any Applicable Contract to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included made in the Prospectus under the headings “Description of Capital Stockheading "United States Federal Tax Consequences,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case " insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair they purport to be summaries of such United States federal income tax laws and regulations or legal mattersconclusions with respect thereto relating to the purchase, agreementsownership and disposition of the Securities by non-U.S. holders (as defined therein), documents or proceedingsconstitute accurate summaries thereof in all material respects;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) appear on their face to comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion)Act;
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) each of the Reorganization Agreements has been duly authorized, executed and delivered by the Company and constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as may be limited by (1) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws affecting the enforcement of creditors' rights generally, and (2) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (whether arising under a proceeding at law or in equity);
(viii) the Certificate of Designations creating the Securities has been duly filed with the Secretary of State of Delaware on or before the Effective Date;
(ix) The Pledge Agreement has been duly authorized, executed and delivered by the Company, and such agreement is a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditor's rights, and (ii) the application of general principles of equity (regardless of which such enforceability is considered in a proceeding of equity or at law);
(x) the provisions of the Pledge Agreement are effective to create a valid security interest in each respective Collateral Account in favor of the Collateral Agent for the benefit of each holder of Securities to secure the Dividend Obligations(as defined in the Pledge Agreement) with respect to each Collateral Account described in the Pledge Agreement and valid security interests in all of the Company's right, title and interest in and to that portion of the Collateral (as defined in the Pledge Agreement) in which a security interest may be created under Article 9 of the New York version of the Uniform Commercial Code (the "UCC") and 31 C.F.R. Part 357. Under the UCC and the Federal Book-Entry Regulations, the provisions of the Pledge Agreement are effective to perfect the security interest of the holders of Securities in the Company's rights in the Collateral Accounts.;
(xi) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viiixii) no Governmental Approval (as defined below), which has not been obtained or taken and is not in full force and effect, is required to authorize, or is required in connection with, the execution, delivery or performance by the Company of this Agreement or any Reorganization Agreement, including the issuance and sale of the Securities to the Underwriters (for purposes of such opinion, (i) "Governmental Approval" means any consent, approval, license, authorization or validation of, or filing, qualification or registration with, any Governmental Authority required to be made or obtained by the Company pursuant to Applicable Laws (as defined below), other than any consent, approval, license, authorization, filing with validation, filing, qualification or order registration (A) required under federal, state or foreign securities laws, (B) required under the rules and regulations of the NASD or (C) that may have become applicable as a result of the involvement of any court or governmental agency or body is required party other than the Company in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and or because of such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation parties' legal or regulatory status or because of any other of the transactions herein contemplatedfacts specifically pertaining to such parties, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, and (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of "Governmental Authorities" means any court, regulatory body, administrative agency, agency or governmental body, arbitrator body of the State of New York or other authority the United States of America having jurisdiction over the Company or the Subsidiaries or any of its or their propertiesunder Applicable Laws);
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliabl
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Underwriters' Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and any settlement date pursuant to Section 3 hereofas of the Closing Date, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will shall have become effective not later than (i) 6:00 PM P.M. New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM P.M. New York City time on such date or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM P.M. New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be Prospectus shall 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 registration Statement, as amended from time to time, 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 their opinionRepresentatives:
(i) the opinion of the General Counsel, an Assistant General Counsel, or other counsel of the Company, dated the Closing Date and addressed to the RepresentativesDate, to the effect that:
(iA) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedState of Delaware, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction within the United States which requires such qualificationqualifications wherein it owns or leases material properties or conducts material business;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iiiB) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms Securities conform in all material respects to the description thereof contained in the Prospectus;
(C) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws affecting creditors' rights generally from time to time in effect, and subject, as to enforceability, to general principle of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and the outstanding shares of Common Stock Securities have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; in the Securities being sold hereunder case of the Underwriters' Securities, or by the Company are duly listedpurchasers thereof pursuant to Delayed Delivery Contracts, and admitted and authorized for tradingin the case of any Contract Securities, subject to official notice of issuance and evidence of satisfactory distributionwill constitute legal, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock binding obligations of the Company are not entitled to preemptive or the benefits of the Indenture (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, and other similar laws affecting creditors' rights generally from time to subscribe for the Securities; and, except as set forth time in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstandingeffect);
(ivD) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit theretoexhibit, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(vE) the Registration Statement has and any amendments thereto have become effective under the Act; any required filing of the Prospectus, Prospectus and any supplements thereto, supplement thereto pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement Statement, as amended, has been issued, no proceedings for that purpose have been instituted or threatened and are pending or contemplated under the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion)Act;
(viF) this Agreement has and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viiiG) no consent, approval, authorization, approval or other action by, and no notice to, consent of, order of, or filing with with, any relevant United States governmental authority or order of any court or governmental agency or regulatory body is required in connection with for the consummation of the transactions contemplated hereinherein or in any Delayed Delivery Contracts, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ixH) neither such counsel has no reason to believe that (1) the Registration Statement and the Prospectus (except the financial statements and the notes thereto and other information of an accounting or financial nature included therein, and the Statement of Eligibility (Form T-1) included as an exhibit to the Registration Statement, as to which such counsel need express no view) were not appropriately responsive in all material respects to requirements of the Act and the applicable rules and regulations of the Commission thereunder and (2) the Registration Statement or any amendment thereof at the time it became effective contained any 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 Prospectus, as amended or supplemented, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (in each case except for the financial statements and the notes thereto and other information of an accounting or financial nature included therein, as to which such counsel need express no view); and
(I) none of the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor contemplated or the fulfillment of the terms hereof, nor the consummation hereof or of the Merger any Delayed Delivery Contracts will conflict with, result in a breach or violation of, or imposition of any lienconstitute a default under, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan indenture or other agreement or other agreement, obligation, condition, covenant or instrument known to such counsel and to which the Company or the Subsidiaries is a party or bound or to which its or their property is subjectbound, or (iii) any statute, law, rule, regulation, judgment, order decree or decree regulation known to such counsel to be applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, body or arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.___________________, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Indenture, any Delayed Delivery Contracts, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer (or Vice President and Treasurer) of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement, the Prospectus, any supplements supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date 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 Statement, as amended, 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 Prospectus (exclusive of any supplement thereto)Prospectus, there has been no material adverse effect on change in the condition (financial or otherwiseother), prospects, earnings, business or properties of the Company and its Subsidiaries, taken subsidiaries considered as a wholeone enterprise, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto)Prospectus.
(e) The Selling Stockholder At the Closing Date, PricewaterhouseCoopers LLP shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opiniona letter or letters (which may refer to a letter previously delivered to one or more of the Representatives), dated as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder, that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) this Agreement in their opinion the audited financial statements and schedules thereto included or incorporated in the Registration Statement and the Custody Agreement Prospectus and Power reported on by them comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, Exchange Act and the Selling Stockholder has full legal right published rules and authority regulations thereunder with respect to sell, transfer financial statements and deliver financial statement schedules included or incorporated in annual reports on Form 10-K under the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderExchange Act;
(ii) assuming that each Underwriter acquires its interest on the basis of a reading of the unaudited financial statements included or incorporated in the Securities it has purchased from Registration Statement and the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 Prospectus and of the UCC), each Underwriter that has purchased such Securities delivered on latest unaudited financial statements made available by the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts 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 such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter significance with respect to the comments set forth in such Securities;letter; a reading of the minutes of the meetings of the stockholders, directors and executive committees of the Company and the Subsidiaries since the date of the latest audited balance sheet, through a specified date not more than five business days prior to the date of the letter; 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 the date of the most recent financial statements incorporated in the Registration Statement and the Prospectus, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated in the Registration Statement and the Prospectus do not comply as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect to financial statements included or incorporated in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not stated on a basis substantially consistent with that of the audited financial statements included or incorporated in the Registration Statement and the Prospectus; or
(2) with respect to the period subsequent to the date of the most recent financial statements incorporated in the Registration Statement and the Prospectus, there were, at a specified date not more than five business days prior to the date of the letter, any increases in long-term debt of the Company and its subsidiaries or decreases in the capital stock of the Company or decreases in the stockholders' equity of the Company and its subsidiaries as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated in the Registration Statement and the Prospectus, except in all instances for increases 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; and
(iii) no consentthey have performed certain other procedures as a result of which they determined that the information described in a schedule to be delivered on behalf of the Underwriters of an accounting, approvalfinancial or statistical nature (which is limited to accounting, authorization financial or order statistical information derived from the general ledger of the Company) set forth in the Registration Statement, as amended, the Prospectus, as amended or supplemented, and in Exhibit __ to the Registration Statement (including selected accounting, financial or statistical information included or incorporated in the Company's Annual Report on Form 10-K incorporated in the Prospectus or any of the Company's Quarterly Reports on Form l0-Q incorporated therein), agrees with the general ledger of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplements thereto at the date of the letter.
(f) Subsequent to the respective dates of which information is given in the Registration Statement and the Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 or (ii) any change, or any development involving a prospective change, in or affecting the business or properties of the Company and its subsidiaries considered as one enterprise the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the public offering or the delivery of the Securities as contemplated by the Registration Statement and the Prospectus.
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) The Company shall have accepted Delayed Delivery Contracts in any case where sales of Contract Securities arranged by the Underwriters have been approved by the Company.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters Moody's Investor's Service, Inc. ("Moody's") or Standard & Poor's Corporation ("S&P") and such other approvals (specified in such opinion) as neither Moody's nor S&P shall have been obtained; and
(iv) neither the sale publicly announced that it has placed any of the Securities being sold on a credit watch with negative implications. If any of the conditions specified in this Section 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 their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Selling Stockholder nor the consummation Representatives. Notice of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to cancellation shall be applicable given to the Selling Stockholder Company in writing or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body by telephone or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified telegraph confirmed in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablwriting.
Appears in 1 contract
Sources: Underwriting Agreement (Minnesota Mining & Manufacturing Co)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any subsequent settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM p.m., New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM p.m., New York City time time, on such date or (ii) 9:30 AM 12:00 Noon, New York City time, on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM p.m., New York City time time, on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to the applicable paragraph of Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused furnished to the Representatives the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP& ▇▇▇▇▇▇, Professional Corporation, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the RepresentativesDate, to the effect that:
(i) each of the Company, ATX Technologies Company and ATX Europe GmbH (“ATX Europe”) each Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to so qualify or be in good standing, singly or in the aggregate would not have a material Adverse Effect;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, nonassessable and all outstanding shares of capital stock of ATX Technologies and ATX Europe the Subsidiaries (other than ___ of [MTC Japan]) are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interestinterests, claimclaims, lien liens or encumbranceencumbrances, except as described in the Registration Statement;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock Stock, par value $.001 per share, of the Company have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for tradingquotation, subject to official notice of issuance and evidence of satisfactory distributionissuance, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; and the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property subsidiaries of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit theretoexhibit, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description captions "Prospectus Summary--Reorganization," "Risk Factors--Government Regulation," "Risk Factors--Impact of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” ," "Business-Regulation," "Business--Legal Proceedings," "Business--Reorganization," "Management--Stock Option Plans and “Underwriting”Arrangements," "Certain Transactions," "Description of Capital Stock, "Shares Eligible for Future Sale," and "Certain U.S. Tax Considerations for Non-U.S. Holders" fairly summarize, in all material respects, the matters therein described, in each case insofar as such statements summarize constitute summaries of the legal matters, agreements, documents or proceedings discussed referred to therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Securities Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, issued and no proceedings for that purpose have been instituted or threatened and threatened; the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, therein as to which such counsel need express render no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder; and such counsel has no reason to believe that on at the Effective Date or the date the Registration Statement was last deemed amended, (other than the Registration Statement financial statements and other financial and statistical information contained therein as to which such counsel need render no opinion) includes any 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 Prospectus Prospectus, as of its date and on or the Closing Date included or (other than the financial statements and other financial and statistical information contained therein as to which such counsel need render no opinion), includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion)misleading;
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with authorization or order of any court or governmental agency or body is required in connection with for the consummation of the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky laws of any jurisdiction or the NASD Corporate Financing Rule in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (if any, and specified in such opinion) as have been obtained;
(ixviii) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplatedcontemplated herein, nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, with result in a breach or violation of, or imposition of constitute a default under, any lien, charge law or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan indenture or other agreement or other agreement, obligation, condition, covenant or instrument known to such counsel and to which the Company or the Subsidiaries any Subsidiary is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree known to such counsel to be applicable to the Company or the Subsidiaries any Subsidiary of any court, regulatory body, administrative agency, governmental body, body or arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;Subsidiary; and
(xix) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied , which rights have not been satisfied or waived with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ respect to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized offering made by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the ActRegistration Statement. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware California or the Federal federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date. With respect to paragraph (b)(v) of this Section 6, counsel may state that its belief is based upon its participation in the preparation of the Registration Statement and Prospectus and any amendments and supplements thereto and review and discussion of the contents thereof, but is without independent check or verification.
(c) The Representatives shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P.▇▇▇, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement supplements thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer, President and the principal financial or accounting officer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements supplement to the Prospectus Prospectus, and this Agreement 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 hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement 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 Prospectus (exclusive of any supplement supplements thereto), there has been no material adverse effect on change, or development involving a prospective change, in the condition (financial or otherwiseother), business, prospects, earningsproperties, business net worth or properties results of operations of the Company and its Subsidiariessubsidiaries, 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 Prospectus (exclusive of any supplement supplements thereto).
(e) The Selling Stockholder At the Execution Time and at the Closing Date, KPMG Peat Marwick LLP shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opiniona signed letter, dated respectively as of the Execution Time and as of the Closing Date and Date, each in the respective form contemplated for "comfort letters addressed to underwriters" by Statement of Auditing Standards No. 72 ("SAS 72"), and in form and substance previously provided to for review and agreed to as satisfactory to the Representatives and to counsel for the Underwriters. Each such letter shall specify therein, inter alia, the amounts described as being set forth therein in paragraph (f)(i) of this Section 6 as of the dates contemplated by SAS 72.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any increases in the Company's (including its consolidated subsidiaries') long-term debt (including current maturities), or changes in the Company's (including its consolidated subsidiaries') capital stock or stockholders' equity, or decreases in the Company's (including its consolidated subsidiaries') working capital, total net sales, net income (or increases in net loss) or per share amounts, in each case from the amounts specified in the letter delivered at the Execution Time and referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), business, prospects, properties, net worth or results of operations of the Company and its subsidiaries, taken as a whole, the effect of which, in any case referred to in clauses (i) or (ii) above, is, in the 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) and the Prospectus (exclusive of any supplement thereto).
(g) On or prior to the effect that:Execution Time, the NASD shall have approved the Underwriters' participation in the distribution of the Securities and the Nasdaq National Market shall have approved the Securities for listing thereon.
(h) At the Execution Time, the Company shall have furnished to the Representatives each of the signed Lock-Up Letters.
(i) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives or counsel for the Underwriters may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 all obligations of the UCC)Underwriters hereunder may be canceled at, each Underwriter that has purchased such Securities delivered on or at any time prior to, the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had the Representatives. Notice of such Securities credited cancellation shall be given to the securities account Company in writing or accounts of such Underwriters maintained with The Depository Trust Company by telephone or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction telegraph confirmed in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablwriting.
Appears in 1 contract
Sources: Underwriting Agreement (Netsource 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 and the Selling Stockholder 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 Stockholder made in any certificates pursuant to the provisions hereof, and to the performance by the Company and the Selling Stockholder of its their respective obligations hereunder (the Company and the Selling Stockholder agreeing with one another to perform such respective obligations and to use all reasonable efforts to satisfy all conditions to the obligations of the Underwriters to purchase the Underwritten Securities contemplated herein to be satisfied by the Company and the Selling Stockholder, as applicable). The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall also be subject to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Skadden, Arps, Slate, ▇▇▇▇▇▇▇ ▇& ▇▇▇▇ LLP, special counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form of EXHIBIT A attached hereto. In rendering the opinion contained in EXHIBIT A, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. 15
(c) The Company shall have requested and caused Lahive and ▇▇▇▇▇▇▇▇▇, LLP, special patent counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
that the statements contained in (i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iiiA) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock "RISK FACTORS" section of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description caption "IF WE ARE UNABLE TO OBTAIN AND ENFORCE VALID PATENTS, WE COULD LOSE ANY COMPETITIVE ADVANTAGE WE MAY HAVE," and (B) the "BUSINESS" section of Capital Stockthe Prospectus under the captions "TECHNOLOGY LICENSES,” “Certain Relationships " "PATENTS AND PROPRIETARY RIGHTS," and Related Party Transactions"LEGAL PROCEEDINGS,” “Shares Eligible for Future Sale” and “Underwriting”, " in each case case, insofar as such statements constitute matters of law or legal conclusions or summarize legal mattersor regulatory matters or proceedings, agreements, documents or proceedings discussed therein, have been reviewed by them and are accurate and fair descriptions of such matters of law or legal conclusions or summaries of such legal matters, agreements, documents or regulatory matters or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, opinion such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State Commonwealth of Texas and the State of Delaware Massachusetts or the Federal federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(cd) The Company shall have requested and caused ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C., special regulatory counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that the statements contained in (A) the "RISK FACTORS" section of the Prospectus under the caption "IF OUR CLINICAL TRIALS ARE NOT SUCCESSFUL, OR IF WE ARE OTHERWISE UNABLE TO OBTAIN AND MAINTAIN REGULATORY APPROVAL REQUIRED TO MARKET AND SELL OUR PRODUCTS, WE WOULD INCUR INCREASING OPERATING LOSSES" AND (B) the "BUSINESS" section of the Prospectus under the caption "GOVERNMENT REGULATION," insofar as such statements constitute matters of law or legal conclusions or summarize legal or regulatory matters or proceedings, have been reviewed by them and are accurate and fair descriptions of such matters of law or legal conclusions or summaries of such legal or regulatory matters or proceedings.
(e) The Selling Stockholder shall have requested and caused ▇'▇▇▇▇▇▇▇▇ Graev & Karabell, LLP, special counsel for the Selling Stockholder, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives, substantially to the effect that:
(i) this Agreement has been duly authorized, executed and delivered by the Selling Stockholder pursuant to such Selling Stockholder's power of attorney and the Selling Stockholder has the requisite power and authority to sell, transfer and deliver in the manner provided in this Agreement the Securities being sold by the Selling Stockholder hereunder;
(ii) assuming that (1) the Underwriters purchase such Securities from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), (2) the Underwriters make payment therefor as provided herein, (3) such Securities are delivered to the Representatives in accordance with the provisions of the Custody Agreement, and (4) the Underwriters obtain control of the Securities (within the meaning of Section 8-106 of the UCC), the Underwriters will acquire all of the Selling Stockholder's rights and interest in such Securities free of any adverse claim (within the meaning of Section 8-105 of the UCC);
(iii) no consent, approval, authorization or order of any federal or New York court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the securities or blue sky laws of any jurisdiction and the rules of the National Association of Securities Dealers Inc. in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any Applicable Law or the certificate of formation or operating agreement of the Selling Stockholder or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or of any New York or federal court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Selling Stockholder and public officials.
(f) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.Procter LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(dg) The Company shall have furnished to the Representatives a certificate of the Company, signed by (i) the Chairman Chief Executive Officer and President of the Board or Company and (ii) the President and the principal financial or accounting officer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus Prospectus, 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessCompany, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(eh) The Selling Stockholder shall have requested and caused , counsel for furnished to the Representatives a certificate of the Selling Stockholder, signed by an authorized representative of the Selling Stockholder, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus, this Agreement and the Irrevocable Power of Attorney and Custody Agreement and that the representations and warranties of the Selling Stockholder in this Agreement and the Irrevocable Power of Attorney and Custody Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representatives their opinionletters, at the Execution Time and at the Closing Date, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives, to confirming that they are independent accountants within the meaning of the Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for the nine-month period ended September 30, 1999 and September 30, 2000, and as of September 30, 2000, in accordance with Statement on Auditing Standards No. 71, and stating in effect that:
(i) this Agreement in their opinion the audited financial statements and financial statement schedules included in the Registration Statement and the Custody Agreement Prospectus and Power reported on by them comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed the Act and delivered the related rules and regulations adopted by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderCommission;
(ii) assuming that each Underwriter acquires its interest in on the Securities it has purchased from the Selling Stockholder without notice basis of any adverse claim (within the meaning of Section 8-105 a reading of the UCC)latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, each Underwriter that has purchased such Securities delivered in accordance with standards established under Statement on Auditing Standards No. 71, of the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided hereinunaudited interim financial information for the nine-month period ended September 30, 1999 and September 30, 2000, and that has had such Securities credited to the securities account or accounts as of such Underwriters maintained September 30, 2000; carrying out certain specified procedures (but not an examination in accordance with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning generally accepted auditing standards) which would not necessarily reveal matters of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter significance with respect to the comments set forth in such Securities;letter; a reading of the minutes of the meetings of the stockholders, directors and audit and compensation committees of the Company and meetings of the Member of the Subsidiary; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and the Subsidiary as to transactions and events subsequent to December 31, 1999, nothing came to their attention which caused them to believe that:
(1) [Intentionally left blank]
(2) with respect to the period subsequent to September 30, 2000, there were any changes, at a specified date not more than five days prior to the date of the letter, in the capital stock of the Company or decreases in the stockholders' equity of the Company as compared with the amounts shown on the September 30, 2000 balance sheet included in the Registration Statement and the Prospectus; or for the period from October 1, 2000 to such specified date there were any decreases, as compared with the period from October 1, 1999 to February 9, 2000 in 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; and
(3) the information included in the Registration Statement and Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), is not in conformity with the applicable disclosure requirements of Regulation S-K; and
(iii) no consentthey have performed certain other specified procedures as a result of which they determined that certain information of an accounting, approvalfinancial or statistical nature (which is limited to accounting, authorization financial or order statistical information derived from the general accounting records of the Company and the Subsidiary) set forth in the Registration Statement and the Prospectus, including the information set forth under the captions "SELECTED FINANCIAL DATA" and "MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS" in the Prospectus, agrees with the accounting records of the Company and the Subsidiary, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (i) include any supplement thereto at the date of the letter.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any court amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or governmental agency decrease specified pursuant to paragraph (i)(ii)(1) in the letter or body is required for letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the consummation condition (financial or otherwise), prospects, earnings, business or properties of the Company and the Subsidiary taken as a whole, except as set forth in or contemplated in 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) and the Prospectus (exclusive of any supplement thereto).
(k) On or prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. Except as otherwise expressly provided in this Section 6, if any of the transactions contemplated herein, except such as may conditions specified in this Section 6 shall not have been obtained under the Act fulfilled in all material respects when and such as may be required under the blue sky laws of any jurisdiction provided in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; this Agreement, this Agreement and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliabl
Appears in 1 contract
Sources: Underwriting Agreement (Praecis Pharmaceuticals Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder 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 Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Winthrop, Stimson, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualificationqualification except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and and, assuming receipt by the Company of the consideration payable for the issuance thereof, are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to statutory preemptive or or, to the knowledge of such counsel, other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iviii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and and, to the knowledge of such counsel, there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(viv) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other statistical and financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or at the date the Registration Statement was last deemed amended, Execution Time the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other statistical and financial and statistical information contained therein, as to which such counsel need express no opinion);
(viv) this Agreement has been duly authorized, executed and delivered by the Company;
(viivi) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viiivii) no consent, approval, authorization, filing with or order of any New York, Delaware or federal court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ixviii) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its SubsidiariesCompany, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument known to such counsel to which the Company or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rulerule or regulation applicable to the Company, regulation, or (iv) any judgment, order or decree known to such counsel applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;; and
(xix) except as set forth in or contemplated disclosed in the Prospectus (exclusive Registration Statement and to the knowledge of any supplement thereto)such counsel, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Cravath, Swaine & ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder Company shall have requested and caused , counsel for the Selling Stockholder, KPMG LLP to have furnished to the Representatives their opinionletters, at the Execution Time and at the Closing Date, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives, to confirming that they are independent accountants within the meaning of the Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for the three-month period ended March 31, 1999 and as at March 31, 1999, in accordance with Statement on Auditing Standards No. 71, and stating in effect that:
(i) this Agreement in their opinion the audited financial statements and financial statement schedules included in the Registration Statement and the Custody Agreement Prospectus and Power reported on by them comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed the Act and delivered the related rules and regulations adopted by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderCommission;
(ii) assuming that each Underwriter acquires its interest in on the Securities it has purchased from the Selling Stockholder without notice basis of any adverse claim (within the meaning of Section 8-105 a reading of the UCC)latest unaudited financial statements made available by the Company; their limited review, each Underwriter that has purchased such Securities delivered in accordance with standards established under Statement on Auditing Standards No. 71, of the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided hereinunaudited interim financial information for the three-month period ended March 31, 1999, and that has had such Securities credited to the securities account or accounts as at March 31, 1999, as indicated in their report dated , 1999; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter significance with respect to the comments set forth in such Securitiesletter; a reading of the minutes of the meetings of the stockholders, directors and audit and compensation 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, 1998, 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 March 31, 1999, 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 March 31, 1999 balance sheet included in the Registration Statement and the Prospectus, or for the period from April 1, 1999 to such specified date there were, as compared with the corresponding period in the preceding quarter, any decrease in revenues or any increase in the total or per share amount of net loss of the Company, except in all instances for changes, decreases or increases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives;
(3) the information included in the Registration Statement and Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information) and Item 402 (Executive Compensation) is not in conformity with the applicable disclosure requirements of Regulation S-K;
(iii) no consentthey have performed certain other specified procedures as a result of which they determined that certain information of an accounting, approvalfinancial or statistical nature (which is limited to accounting, authorization financial or order of any court or governmental agency or body is required for statistical information derived from the consummation by the Selling Stockholder general accounting records of the transactions contemplated hereinCompany) set forth in the Registration Statement and the Prospectus, except such as may have been obtained including the information set forth under the Act captions "Management's Discussion and such as may be required under Analysis and Financial Condition and Results of Operations", "Selected Financial Data", "Prospectus Summary--Summary Financial Data", "Capitalization", "Dilution", "Business" and "Risk Factors" in the blue sky laws of any jurisdiction in connection Prospectus, agrees with the purchase and distribution accounting records of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtainedCompany, excluding any questions of legal interpretation; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliabl
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The -------------------------------------------------- obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPKing & Spalding, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company and National Service Industries, Inc., a Georgia corporation, NSI Enterprises, Inc., a California corporation, and Zep Manufacturing Company, ATX Technologies a Delaware company (individually a "Subsidiary" and ATX Europe GmbH (“ATX Europe”collectively the "Subsidiaries") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the financial condition, prospective financial condition, 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 Final Prospectus (exclusive of any supplement thereto); (ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Final Prospectus; the capital stock of Securities [and the Company conforms Common Stock] conform[s] in all material respects to the description thereof contained in the Final Prospectus; [the outstanding Securities [and the shares of Common Stock issuable upon conversion of the Securities] are duly listed, and admitted and authorized for trading subject to official notice of issuance [and evidence of satisfactory distribution] on the ,]; [the shares of Common Stock initially issuable upon conversion of the Securities have been duly and validly authorized and reserved for issuance upon such conversion and, when issued and are upon conversion, will be validly issued, fully paid and nonassessable];
(iv) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect); and the Securities being sold hereunder by the Company have been duly and validly authorized, authorized and, when issued executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listedconstitute legal, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock binding obligations of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in benefits of the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstandingIndenture;
(ivv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required[; and the statements included or incorporated by reference in the Final Prospectus under the headings “Description of Capital Stock,” “Certain Relationships heading[s] "Tax Matters", " " and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements " " fairly summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedingsthe matters therein described];
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliabl
Appears in 1 contract
Sources: Underwriting Agreement (National Service Industries Inc)
Conditions to the Obligations of the Underwriters. The obligations -------------------------------------------------- of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder 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 and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree Representative agrees in writing to a later time, the Registration Statement will become effective not later than (i1) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii2) 9:30 10:00 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ Thelen Reid & Priest LLP, counsel for the Company, to have furnished to the Representatives furnis▇▇▇ ▇▇ ▇▇▇ Representative their opinion, dated the Closing Date and addressed to the RepresentativesRepresentative, to the effect that:
(i1) each of the Company, ATX Technologies Company and ATX Europe GmbH (“ATX Europe”) each Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs, business prospects or properties of the Company and its subsidiaries, taken as a whole; the Company has full corporate power and authority to issue and perform its obligations under the Securities;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii2) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms Securities conform in all material respects to the description thereof contained in the Prospectus;
(3) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other laws affecting creditors' rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law); and the outstanding shares of Common Stock Securities have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listedconstitute legal, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock binding obligations of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in benefits of the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstandingIndenture;
(iv4) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “heading "Description of Capital Stock,” “Certain Relationships Debentures" fairly summarize the matters therein described; provided, however, such counsel need express no opinion as to the information concerning DTC and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedingsDTC's book-entry system included under the subheading "Book-Entry Only Issuance - The Depository Trust Company";
(v5) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement Statement, at the time it became effective, and the Prospectus Prospectus, at the time first filed with the commission pursuant to Rule 424(b) under the Act and at the date hereof (other than (i) the financial statements and other financial and statistical information contained or incorporated by reference therein, (ii) the parts of the Registration Statement that constitute statements of eligibility of the Trustee and (iii) the information concerning FirstEnergy contained or incorporated by reference in the [Joint Proxy Statement/Prospectus], as to which such counsel need express no opinion) complied and comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; ;
(6) this Agreement has been duly authorized, executed and delivered by the Company;
(7) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be an "investment company" as defined in the Investment Company Act of 1940, as amended;
(8) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained or made under the Act, the Trust Indenture Act and the Public Utility Holding Company Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus; the consents, approvals, authorizations, filings or orders which have been obtained or made are adequate to permit the execution and delivery of this Agreement and the Indenture and the issuance and sale of the Securities in accordance with this Agreement;
(9) neither the execution and delivery of the Indenture, the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries pursuant to, (i) the charter or by-laws of the Company or its subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument known to such counsel to which the Company or its subsidiaries is a party or bound or to which its or their property is subject, other than any such conflicts, breaches, violations or impositions which would not result in any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs, business prospects or properties of the Company and its subsidiaries, taken as a whole or (iii) any statute, law, rule, or regulation, or any judgment, order or decree known to such counsel, applicable to the Company or its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its subsidiaries or any of its or their properties. In addition, such counsel shall state that it has no reason to believe that that, on the Effective Date or the date the Registration Statement was last deemed amendedDate, the Registration Statement contained any 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 Prospectus Prospectus, as of its date and on the Closing Date Date, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than (i) the financial statements and other financial and statistical information contained therein, (ii) the parts of the Registration Statement that constitute statements of eligibility of the Trustee, (iii) the information concerning FirstEnergy contained or incorporated by reference in the [Joint Proxy Statement/Prospectus], and (iv) the information concerning DTC and DTC's book-entry system included under the subheading "Book-Entry Only Issuance - The Depository Trust Company", as to which such counsel need express no opinionview or belief);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (Ai) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (Bii) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives Representative shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.Winthrop, Stimson, Putnam & Roberts, counsel for the Underwriters, such opinion or opinionso▇▇▇▇▇▇s, dated ▇▇▇▇d the Closing Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chairman of the Board President, or the a Vice-President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i1) 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;; and
(ii2) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s 's knowledge, threatened; and
(iii) since and no order directed to the date adequacy of the most recent financial statements included any document incorporated by reference in the Prospectus (exclusive has been issued by the Commission, and no challenge by the Commission has been made to the adequacy of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto)such documents.
(e) The Selling Stockholder Company shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinionRepresentative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative, confirming (through a specified date not more than five days prior to the Execution Date and addressed to the RepresentativesClosing Date, to respectively) that they are independent accountants within the meaning of the Act and the Exchange Act and that they have performed a review of the unaudited interim financial information of the Company for the ----- -month period ended --------, 2000, and as at -------- , 2000, in accordance with Statement on Auditing Standards No. 71, and stating in effect that:
(i1) this Agreement in their opinion the audited financial statements and financial statement schedules [and pro forma financial statements] included or incorporated by reference in the Registration Statement and the Custody Agreement Prospectus and Power reported on by them comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, Act and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderExchange Act;
(ii2) assuming that each Underwriter acquires its interest on the basis of a reading of the latest unaudited consolidated financial statements made available by the Company; their limited review, in accordance with standards established under Statement on Auditing Standards No. 71, of the unaudited interim financial information for the ---- -month period ended --------, 2000 , and as at -------- , 2000, as indicated in their report dated -------- , 2000, incorporated by reference in the Securities it has purchased from Registration Statement and the Selling Stockholder without notice Prospectus; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter significance with respect to the comments set forth in such Securitiesletter; a reading of the minutes of the meetings of the stockholders, the Boards of Directors and the Executive Committee of the Boards of Directors of the Company and its subsidiaries as set forth in the respective minute books since December 31; 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 --------- , 2000, nothing came to their attention which caused them to believe that:
(a) any unaudited financial statements included or incorporated by reference 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 the Exchange Act with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q; or that said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus;
(iiib) no consentwith respect to the period subsequent to --------, approval2000, authorization or order of there were any court or governmental agency or body is required for changes, at a specified date not more than five days prior to the consummation by the Selling Stockholder date of the transactions contemplated hereinletter, in the consolidated common stock, preferred stock without mandatory redemption, preferred stock with mandatory redemption or long-term debt (except for such as may have been obtained stock and long-term debt acquired for sinking fund purposes or redeemed pursuant to sinking fund provisions, or changes in obligations under capital leases incurred in the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution ordinary course of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale business of the Securities being sold by the Selling Stockholder nor the consummation of any other Company and its subsidiaries), of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel Company and to which the Selling Stockholder or any of its subsidiaries is a party or boundsubsidiaries, or any judgmentdecrease in consolidated net assets (except as occasioned by the declaration of dividends), order in each case as compared with the amounts shown on the --------, 2000, consolidated balance sheet included or decree known incorporated by reference in the Registration Statement and the Prospectus, or for the period from ---------, 2000 to such counsel to specified date there were any decreases, as compared with the corresponding period in the preceding year, in consolidated revenues or net income, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be applicable accompanied by an explanation by the Company as to the Selling Stockholder significance thereof unless said explanation is not deemed necessary by the Representative;
(c) the information included or any incorporated by reference in the Registration Statement and Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of its subsidiaries Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablRegulat
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 bedescribed in Section 2 hereof, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution TimeThe Final Prospectus Supplement, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or and any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be have been filed in the manner and within the time period required by Rule 424(b); the Final Term Sheet 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Barbara E. Mathews, Vice P▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ LLPociate General Counsel, counsel for Chief Governance Officer and Corporate Secretary of the Company, to have furnished to the Representatives their her opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the CompanyThe Company is a corporation duly incorporated, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and is validly existing as a corporation and in good standing under the laws of the jurisdiction in which it is chartered or organized, with full State of California;
(ii) The Company has the corporate power and authority to own or leaseand operate its property, to lease the property it operates as the case may be, lessee and to operate its properties and conduct its the business in which it is currently engaged, as described in the ProspectusRegistration Statement, Preliminary Prospectus Supplement and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbranceFinal Prospectus Supplement;
(iii) The Company has all requisite corporate power and authority, has taken all requisite corporate action, and has received and is in compliance with all governmental, judicial and other authorizations, approvals and orders necessary to enter into and perform the Company’s authorized capitalization is as set forth in Underwriting Agreement and the Prospectus; Supplemental Indenture and to offer, issue, sell and deliver the capital stock of Securities;
(iv) the Trust Indenture has been duly authorized, executed and delivered by the Company conforms and is a legal, valid, and binding instrument enforceable against the Company in all material respects to accordance with its terms;
(v) the description thereof contained Supplemental Indenture has been duly authorized, executed and delivered by the Company and is a legal, valid, and binding instrument enforceable against the Company in accordance with its terms;
(vi) the Prospectus; the outstanding shares of Common Stock Securities have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued executed and authenticated in accordance with the provisions of the Page 12 Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid constitute legal, valid, and nonassessable; binding obligations of the Securities being sold hereunder Company entitled to the benefits of the Trust Indenture, as supplemented by the Supplemental Indenture;
(vii) the Trust Indenture, as supplemented by the Supplemental Indenture, creates a legally valid first lien, to the extent that it purports to be such, on the properties and assets of the Company are duly listedsubject thereto, and admitted and authorized for tradingsecuring, among other things, the Securities, subject to official notice the exceptions, defects, qualifications and other matters set forth or referred to in the Registration Statement, Preliminary Prospectus Supplement and the Final Prospectus Supplement and other matters that do not, in the opinion of issuance and evidence of satisfactory distributionsuch counsel, on materially affect the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe security for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(ivviii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the ProspectusRegistration Statement, Preliminary Prospectus Supplement and Final Prospectus Supplement, except in each case for such proceedings that, if the subject of an unfavorable decision, ruling or finding, would not singly or in the aggregate, be reasonably likely to result in a material adverse change in the condition (financial or otherwise), prospects, earnings, business, properties or results of operations of the Company, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or ProspectusStatement, the Preliminary Prospectus Supplement and the Final Prospectus Supplement, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included or incorporated by reference in the Preliminary Prospectus Supplement and the Final Prospectus Supplement under the headings "Legal Matters" and "Summary -- Southern California Edison Company" or incorporated by reference into the Preliminary Prospectus Supplement and the Final Prospectus Supplement from the sections entitled "Business-- Regulation" and "-- Environmental Matters" in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2006, as supplemented by information contained in the Company's subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, which are incorporated by reference in the Preliminary Prospectus Supplement and the Final Prospectus Supplement, fairly summarize the matters therein described in all material respects; and the statements set forth in the Preliminary Prospectus Supplement and the Final Prospectus Supplement under the heading "Certain Terms of the Bonds" and in the Base Prospectus under the headings “heading "Description of Capital Stockthe First Mortgage Bonds,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case " insofar as such those statements purport to summarize legal matterscertain provisions of the Trust Indenture, agreements, documents or proceedings discussed thereinthe Supplemental Indenture and the Securities, are accurate and fair summaries of such legal matters, agreements, documents or proceedingsin all material respects;
(vix) the Registration Statement has become effective under the Act; any required filing of the ProspectusPreliminary Prospectus Supplement and the Final Prospectus Supplement, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Final Prospectus Supplement (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vix) this Agreement has been duly authorized, executed and delivered by the Company;
(viixi) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the ProspectusPreliminary Prospectus Supplement and the Final Prospectus Supplement, will not be, be an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viiixii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained (i) under the Act Act, (ii) from the California Public Utilities Commission and (iii) such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Registration Statement, Preliminary Prospectus Supplement and the Final Prospectus Supplement and such other approvals (specified in such opinion) as have been obtained;
(ixxiii) neither the execution and delivery of the Indenture, the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter articles of incorporation or by-laws of the Company or its SubsidiariesCompany, (ii) the terms of any indentureindenture (other than, solely with respect to the disposition of liens, charges and encumbrances upon property or assets of the Company, the lien created by the Indenture in favor of the Securities), contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;; and
(xxiv) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) . Such opinion will also include language to the Merger complied with applicable law and did not require effect that such counsel has no reason to believe that, as of the consent or approval of any third party that was not obtained;
(xii) in connection with the MergerInitial Sale Time, the Company properly (A) exchanged all documents included in the Disclosure Package and the Final Term Sheet contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading. Such opinion will also include language to the effect that counsel has no reason to believe that on the Effective Date the Registration Statement contained any 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 Supplement as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in light of the outstanding shares of ATX Technologies’ Series Acircumstances under which they were made, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Actnot misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware California or the Federal laws of the United States, to the extent they deem she deems proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe she believes to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem she deems proper, on certificates of responsible officers of the Company and public officials. Such counsel may render such opinion subject to such exceptions and qualifications as are reasonable or customary under the circumstances and acceptable to counsel for the Underwriters. References to the Final Prospectus Supplement in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Cleary Gottlieb Steen & Ham▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇l f▇▇ L.L.P., counsel for the ▇▇▇ Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters Representatives as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer Senior Vice President, Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have he has carefully examined the Registration Statement, the ProspectusDisclosure Package and the Final Prospectus Supplement, any supplements to the Prospectus or 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 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 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 or incorporated by reference in the Preliminary Prospectus Supplement and the Final Prospectus Supplement (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiariessubsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, Preliminary Prospectus Supplement and the Final Prospectus Supplement (exclusive of any supplement thereto).
(e) The Selling Stockholder Company shall have requested and caused , counsel for the Selling Stockholder, PricewaterhouseCoopers LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives, confirming that they are independent registered public accounting firm with respect to the Company within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States) and that they have performed a review of the unaudited interim financial information of the Company for the three-month and nine-month periods ended September 30, 2007, and as at September 30, 2007, in accordance with Statement on Auditing Standards No. 100, stating in effect that:
(i) this Agreement in their opinion the audited consolidated financial statements and financial statement schedules of the Company audited by them and included or incorporated by reference in the Registration Statement, the Preliminary Prospectus Supplement (in the case of the letter delivered at the Execution Time) and the Custody Agreement Final Prospectus Supplement (in the case of the letter delivered at the Closing Date) and Power reported on by them comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed the Act and delivered the Exchange Act and the related rules and regulations adopted by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderCommission;
(ii) assuming that each Underwriter acquires on the basis of a reading of the latest unaudited financial statements made available by the Company and its interest subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the three-month and nine-month periods ended September 30, 2007, and as at September 30, 2007, incorporated by reference in the Securities it has purchased from Registration Statement, the Selling Stockholder without notice of any adverse claim Preliminary Prospectus Supplement (within in the meaning of Section 8-105 case of the UCC), each Underwriter that has purchased such Securities letter delivered on at the Execution Time) and the Final Prospectus Supplement (in the case of the letter delivered at the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts Date); carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter significance with respect to the comments set forth in such Securities;letter; a reading of the minutes of the meetings of the stockholders, directors and the executive, finance, compensation and audit 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 Page 16 subsidiaries as to transactions and events subsequent to December 31, 2006, nothing came to their attention which caused them to believe that:
(iii1) no consentany unaudited financial statements included or incorporated by reference in the Registration Statement, approval, authorization or order of any court or governmental agency or body is required for the consummation by Preliminary Prospectus Supplement (in the Selling Stockholder case of the transactions contemplated herein, except such letter delivered at the Execution Time) and the Final Prospectus Supplement (in the case of the letter delivered at the Closing Date) do not comply as may have been obtained under to form in all material respects with applicable accounting requirements of the Act and such as may be required with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in Quarterly Reports on Form 10-Q under the blue sky laws of any jurisdiction Exchange Act; and said unaudited financial statements are not in connection conformity with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablgenerally accepted ac
Appears in 1 contract
Sources: Underwriting Agreement (Southern California Edison 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 and the Selling Stockholder 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 Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ O'Melveny & ▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their its opinion, dated the Closing Date and addressed to the RepresentativesRepresentatives (a copy of which shall be delivered to Prudential, but upon which Prudential shall not be entitled to rely), to the effect that:
(i) each of the Company, ATX Technologies Company and ATX Europe GmbH (“ATX Europe”) each Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedincorporated, with full the corporate power and the corporate authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation in, and is in good standing under the laws under, each of each jurisdiction which requires such qualificationthe applicable jurisdictions set forth on Annex A hereto;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe each Subsidiary have been duly and authorized by all necessary corporate action on the part of such Subsidiary, validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned of record by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrancesubsidiaries;
(iii) the Company’s authorized capitalization is as set forth statements in the Prospectus; Prospectus under the capital stock caption "Description of Capital Stock", insofar as they summarize provisions of the Company conforms in all material respects to Certificate of Incorporation and Bylaws of the description thereof contained in Company, fairly present the Prospectusinformation required by Form S-1; the outstanding shares of Common Stock (including the Securities being sold hereunder by the Selling Stockholders) have been duly and validly authorized and issued by all necessary corporate action on the part of the Company, and are validly issued, fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, authorized by all necessary corporate action on the part of the Company and, when issued upon payment for and delivered to delivery of the Securities in accordance with this Agreement and paid the countersigning of the certificate or certificates representing the Securities by a duly authorized signatory of the registrar for by the Underwriters pursuant to this AgreementCompany's Common Stock, the Securities will be validly issued, fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Marketnon- assessable; the certificates for the Securities are in valid and sufficient formcomply with the provisions of the Delaware General Corporation Law; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the SecuritiesSecurities or any additional shares of the Company's capital stock under the Company's Certificate of Incorporation and Bylaws, or, to the knowledge of such counsel based solely on a review of corporate minutes and factual certificates of responsible officers of the Company, any other agreement or instrument; and, except as set forth in the Prospectus, no optionsbased solely upon the review by such counsel of corporate minutes for matters occurring after June 1, warrants or other rights to purchase1995 and upon factual certificates of responsible officers of the Company, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, the authorized but unissued shares of capital stock of or ownership interests in the Company are outstandingnot subject to any warrants, options, rights or commitments granted by the Company, and the Company is not obligated to issue, purchase or redeem any shares of the Company's capital stock;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become been declared effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, based solely upon telephonic advice from the Commission, no stop order suspending the effectiveness of the Registration Statement has been issued, no and proceedings for that purpose have been instituted or threatened threatened, and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) each appear on their face to comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; ;
(v) in connection with such counsel's participation in conferences in connection with the preparation of the Registration Statement and the Prospectus, such counsel has no reason not independently verified the accuracy, completeness or fairness of the statements contained therein, and the limitations inherent in the examination made by such counsel and the knowledge available to such counsel are such that such counsel is unable to assume, and does not assume, any responsibility for such accuracy, completeness and fairness; however, on the basis of such counsel's review and participation in conferences in connection with the preparation of the Registration Statement and Prospectus, and relying as to materiality to an extent upon opinions of officers and other representatives of the Company, such counsel does not believe that on the Registration Statement as of the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary to make the statements included therein not misleading or misleading, and such counsel does not believe that the Prospectus on the date hereof and as of its date and on the Closing Date included or includes contains any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each casemisleading; provided, other than however, that such counsel need not express any opinion or belief as to the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion)in the Registration Statement or Prospectus;
(vi) the Company has the corporate power and corporate authority to enter into this Agreement has and to issue and sell the Securities as provided herein, and the execution and delivery of this Agreement have been duly authorized, executed and delivered authorized by all necessary corporate action on the part of the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viii) no order, consent, approvalpermit, authorization, approval or filing with or order of any court federal, New York or California governmental agency or body authority is required in connection with on the transactions contemplated hereinpart of the Company for the execution and delivery of this Agreement, or for the issuance and sale of the Securities, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtainedapplicable Blue Sky or state securities laws;
(ix) neither the issue and sale of the Securities, nor the consummation Company's execution and delivery of, and the performance of any other of the transactions herein contemplatedits obligations under, nor the fulfillment of the terms hereofthis Agreement, nor the consummation of the Merger will conflict with, result in a breach or violation of, of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the its Subsidiaries pursuant to, (i) the charter or by-laws bylaws of the Company or its Subsidiaries, (ii) the terms of any indentureexisting obligation of, contractor restriction on, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or its Subsidiaries under any instrument, agreement or contract filed as an exhibit to the Subsidiaries is a party or bound or to which its or their property is subjectRegistration Statement, or (iii) any federal, New York or California statute, lawrule or regulation (except that such counsel need express no opinion regarding any federal securities laws or Blue Sky or state securities laws or Section 8 hereof, ruleexcept as otherwise expressly stated herein), regulation, or (iv) any judgment, order or decree applicable to the Company or the Subsidiaries of any courtfederal, regulatory body, administrative agency, New York or California governmental body, arbitrator or other authority having jurisdiction over the Company or the its Subsidiaries or any of its or their properties, which such judgment, order or decree has been identified, in a certificate of responsible officers of the Company, to such counsel as being applicable to the Company or its Subsidiaries;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders holder of securities of the Company have rights has the right under any instrument, agreement or contract filed as an exhibit to the registration of Registration Statement to register such securities under on or as part of the Registration Statement;
, except for (xii) the Merger complied with applicable law any such holder who has effectively waived such right, and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ Selling Stockholder who has agreed to exercise such right only with respect to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized Option Securities which are proposed to be sold by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Actsuch Selling Stockholder hereunder. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officialsofficials and (B), need express no opinion regarding the matters addressed in the opinion of Drinker, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, including specifically the Company's compliance with, and authorization to participate in, federal Title IV Programs and other federal or state laws or regulations governing or concerning educational services. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives Company shall have received from caused Drinker, ▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P.LLP, special regulatory counsel for the UnderwritersCompany, such opinion or opinionsto have furnished to the Representatives their opinion, dated the Closing Date and addressed to the RepresentativesRepresentatives (a copy of which shall be delivered to Prudential, with respect but upon which Prudential shall not be entitled to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Daterely), to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) The statements in the representations Prospectus under the captions "Risk Factors-Substantial Dependence on Student Financial Aid; Potential Adverse Effects of Governmental Regulation," "Risk Factors- Risk That Legislative Action Will Reduce Financial Aid Funding or Increase Regulatory Burden," "Financial Aid and warranties Regulation," and other references therein to educational regulatory matters, insofar as such statements constitute a summary of applicable federal and state laws and regulations or a summary of judicial or administrative proceedings, are accurate and present fairly the information purported to be shown;
(ii) Such counsel have no knowledge that leads them to believe that the information contained in the Registration Statement and the Prospectus forming a part thereof under the captions "Risk Factors-Substantial Dependence on Student Financial Aid; Potential Adverse Effects of Governmental Regulation," "Risk Factors-Risk That Legislative Action Will Reduce Financial Aid Funding or Increase Regulatory Burden," "Financial Aid and Regulation," as of the Company in this Agreement are true Effective Date and correct on as of the date of the Prospectus 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 Date, contained any untrue statement of a material fact, or omitted to state any material fact required to be performed stated therein or satisfied at or prior necessary to make the Closing Datestatements therein not misleading;
(iiiii) no stop order suspending The Offering will not constitute a change in ownership resulting in a change in control under the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatenedHEA; and
(iiiiv) since To the date best of such counsel's knowledge, each of the most recent financial statements included Company and the Subsidiaries has all necessary licenses, certificates, permits and other authorizations required for each of the Company and the Subsidiaries to participate in Title IV Programs or pursuant to which the Company or any of the Subsidiaries must be authorized by applicable states to engage in rendering educational services as described in the Prospectus (exclusive of except where the failure to so have any supplement thereto)such licenses, there has been no certificates, permits and other authorizations, individually or in the aggregate, would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(ed) The Executive Selling Stockholder Stockholders shall have requested and caused O'Melveny & ▇▇▇▇▇ LLP, counsel for the Executive Selling StockholderStockholders, to have furnished to the Representatives their opinion, opinions dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Executive Selling StockholderStockholders, the Custody Agreement is valid and binding on the respective Executive Selling Stockholder, Stockholders and the respective Executive Selling Stockholder has Stockholders have full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such the respective Executive Selling Stockholder Stockholders hereunder;
(ii) assuming that each Underwriter acquires its interest in upon payment for and delivery of the Securities it has purchased from by the Executive Selling Stockholder Stockholders in accordance with this Agreement, assuming the Underwriters are acquiring the Securities without notice of any adverse claim (within claims, the meaning several Underwriters will acquire the Securities free and clear of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an any adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;claims; and
(iii) no order, consent, approvalpermit, authorization approval or order filing with or of any court California, New York or federal governmental agency or body authority that such counsel has, in the exercise of customary professional diligence, recognized as applicable to transactions of the type contemplated by this Agreement, is required for the consummation by the respective Executive Selling Stockholder Stockholders of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) may rely as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United Statesfact, to the extent they deem proper proper, on certificates of responsible officers of the respective Executive Selling Stockholders and specified public officials and (B), need express no opinion regarding the matters addressed in such opinion, upon the opinion of Drinker, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, including specifically the compliance of the Company or any Executive Selling Stockholder with, and authorization to participate in, federal Title IV Programs and other counsel federal or state laws or regulations governing or concerning educational services.
(e) Prudential shall have caused the Assistant General Counsel of Prudential to have furnished to the Representatives his or her opinion dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement has been duly executed and delivered by Prudential and Prudential has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement the Securities being sold by Prudential hereunder;
(ii) the delivery by Prudential to the several Underwriters of certificates for the Securities being sold hereunder by Prudential against payment therefor as provided herein, will pass good standing whom they believe and marketable title to be reliablsuch Securities to the several Underwriters, free and clear of all liens, encumbrances, equities and claims created by, or with the knowledge of, Prudential;
(iii) no consent, approval, authorization or order of any federal, New York (assuming New York law is identical to Illinois law) court or governmental agency or body is required for the consu
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM New York City time on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 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 their its opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Annex B hereto. The Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock shall have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by caused ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ , Corporate Vice President-Corporate Development, General Counsel and Secretary of the Company to have furnished to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such Representatives his opinion, such counsel may rely (A) as dated the Closing Date and addressed to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United StatesRepresentatives, to the extent they deem proper and specified effect set forth in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing DateAnnex C hereto.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇ L.L.P.▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the 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.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement date pursuant to Section 3 hereto substantially in the form of Exhibit B hereto.
(e) 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, to the effect that the signers of such certificate have carefully examined the Registration Statementletters, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties dated respectively as of the Company in this Agreement are true and correct on Execution Time and as of the Closing Date with the same effect as if made on the Closing Date Date, in form 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 substance satisfactory to the Closing Date;Representatives, to the effect set forth in Annex D hereto.
(iif) no stop order suspending Subsequent to the effectiveness Execution Time or, if earlier, the dates as of which information is given in the Registration Statement has been issued (exclusive of any amendment thereof) 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 Prospectus (exclusive of any supplement thereto), there has shall not have been no material adverse effect on (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, 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 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) and the Prospectus (exclusive of any supplement thereto).
(eg) The Selling Stockholder Prior to the Closing Date, the Company shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinionsuch further information, dated certificates and documents as the Closing Date and addressed Representatives may reasonably request.
(h) Subsequent to the RepresentativesExecution Time, to there shall not have been any decrease in the effect that:rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) The Securities shall have been included for quotation on the Nasdaq National Market and satisfactory evidence of such action shall have been provided to the Representatives.
(j) At the Execution Time, the Company shall have furnished to the Representatives a letter addressed to the Representatives substantially in the form of Exhibit A hereto from each of the executive officers and directors of the Company and from an authorized officer of each of Advanced Micro Devices, Inc. and Fujitsu Limited.
(k) The closing of the purchase of the (i) senior unsecured notes to be issued and sold by Spansion LLC pursuant to the Purchase Agreement dated the date hereof among Spansion LLC, the Company, as guarantor, and the initial purchasers party thereto and (ii) mandatory convertible preferred stock to be issued and sold by the Company pursuant to the Mandatory Convertible Preferred Stock Underwriting Agreement dated the date hereof between the Company and the underwriters party thereto (the “Mandatory Convertible Preferred Stock Underwriting Agreement”) shall occur concurrently with the closing described herein. 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 Custody Agreement and Power Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of Attorney have been duly authorized, executed and 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 Selling Stockholderoffice of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Custody Agreement is valid and binding on the Selling StockholderUnderwriters, and the Selling Stockholder has full legal right and authority to sellat ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC)▇▇▇▇▇ ▇▇▇▇, each Underwriter that has purchased such Securities delivered ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablDate.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder 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 Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives Underwriters agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 4:30 PM New York City Eastern time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 4:30 PM New York City Eastern time on such date or (ii) 9:30 10:00 AM Eastern time on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 4:30 PM New York City Eastern time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 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 Underwriters their opinion, dated the Closing Date and addressed to the RepresentativesUnderwriters, to the effect that:
(i) each of the Company, ATX Technologies Company and ATX Europe GmbH (“ATX Europe”) the Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the ProspectusFinal Prospectus and, in the case of the Company, to execute and deliver this Agreement, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which that requires such qualificationqualification wherein it owns or leases material properties or conducts material business and where the failure to be so qualified could, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, prospects, properties, assets, results of operations or condition (financial or otherwise) of the Company or any of its Subsidiaries;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, nonassessable and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries Subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Final Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Final Prospectus; the outstanding shares of Common Stock (including the Securities being sold hereunder by the Selling Stockholders) have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company Selling Stockholders are duly listedquoted, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, trading on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; none of the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Final Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the its Subsidiaries or its or their property or assets of a character required to be disclosed in the Registration Statement which that is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which that is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) to the knowledge of such counsel, after due inquiry, neither the Company nor any of its Subsidiaries is in violation of its charter or by-laws, nor is any of them in breach or violation of or in default under (nor has any event occurred which, with notice or lapse of time or both, would result in any breach or violation of, or constitute a default under), any indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument to which either the Company or its Subsidiaries is a party or to which any of the respective properties or other assets of the Company or its Subsidiaries is subject, or any applicable statute, rule, regulation, judgment, or decree, or order of any court or governmental agency or body applicable to any of the foregoing or any of their respective properties, including, without limitation, the Nevada Gaming Control Act and any other statute, rule or regulation of the State of Nevada or any political subdivision thereof with respect to gaming.
(vi) the Registration Statement has become effective under the Act; any required filing of the Preliminary Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, amended the Registration Statement contained any 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 on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vivii) this Agreement has been duly authorized, executed and delivered by the Company;
(viiviii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Prospectus, will not be, be an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viiiix) no consent, approval, authorization, filing with or order of any court or governmental agency or body body, including, without limitation, the Nevada State Gaming Control Board, the Nevada Gaming Commission and the Reno City Council, is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Final Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ixx) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the its Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument known to such counsel to which the Company or the its Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the its Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the its Subsidiaries or any of its or their properties;
, including, without limitation, the Nevada Gaming Control Act and any other statute, rule or regulation of the State of Nevada or any political subdivision thereof with respect to gaming, which violation or default could, in the case of clauses (ii) and (iii) above, either individually or in the aggregate with all other violations and defaults referred to in this paragraph (x) (if any), reasonably be expected to have a material adverse effect on the business, prospects, properties, assets, results of operations or condition (financial or otherwise) of the Company or any of its Subsidiaries in the ordinary course of business, except as set forth in or contemplated in the Prospectus Prospectus; and
(exclusive of any supplement thereto), xi) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) , except for the Merger complied Selling Stockholders with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ respect to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized Securities being sold by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization them pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing DateUnderwriting Agreement.
(c) The Representatives Selling Stockholders shall have received from requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Selling Stockholders, to have furnished to the Underwriters their opinion dated the Closing Date and addressed to the Underwriters, to the effect that:
(i) this Agreement, the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholders, this Agreement and the Custody Agreement are valid and binding on the Selling Stockholders and each Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) delivery of certificates representing the Securities by each Selling Stockholder pursuant to the terms of this Agreement will pass to the Underwriters good and valid title to such Securities, free and clear of all security interests, liens, encumbrances, equities or other claims;
(iii) no consent, approval, authorization or order of any court of governmental agency or body is required for the consummation by any Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by any Selling Stockholder nor the consummation of any other of the transactions herein contemplated by any Selling Stockholder or the fulfillment of the terms hereof by any Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or by-laws or other organizational documents of the Selling Stockholder (if such Selling Stockholder is not a natural person) or the terms of any indenture or other agreement or instrument known to such counsel and to which any Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to any Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over any Selling Stockholder or any of its subsidiaries.
(d) The Underwriters shall have received from Jones, Walker, Waechter, Poitevent, Carrère, & ▇▇▇▇▇▇▇, L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesUnderwriters, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives Underwriters may reasonably require, and the Company and the each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives Underwriters a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus 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 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 or incorporated by reference in the Preliminary Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(ef) Each Selling Stockholder shall have furnished to the Underwriters a certificate, signed by such Selling Stockholder (or in the case of a Selling Stockholder that is not a natural person, by the Chairman of the Board or the President or equivalent officer and the principal financial or accounting officer of such Selling Stockholder), dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Final Prospectus, any supplement to the Final Prospectus and this Agreement and that the representations and warranties of such Selling Stockholder 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.
(g) The Selling Stockholder Company shall have requested and caused , counsel for the Selling Stockholder, Deloitte & Touche LLP to have furnished to the Representatives their opinionUnderwriters, at the Execution Time and at the Closing Date, letters (that may refer to letters previously delivered to the Underwriters), dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the RepresentativesUnderwriters, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming confirming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (they are independent accountants within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with Exchange Act and the purchase respective applicable rules and distribution of the Securities regulations adopted by the Underwriters Commission thereunder and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent that they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliabl
Appears in 1 contract
Sources: Underwriting Agreement (Monarch Casino & Resort 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 Fund and the Selling Stockholder Adviser contained herein as of the Execution Time, the Closing Date and any settlement date relating to the Option Securities pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company and the Selling Stockholder Fund made in any certificates pursuant to the provisions hereof, to the performance by the Company and Fund or the Selling Stockholder Adviser of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the total public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM New York City time on the Business Day following the day on which the total public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b)497, the Prospectus, and any such supplement, will be 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 order pursuant to Section 8(e) of the 1940 Act shall have been issued and no proceedings for that purpose shall have been instituted or threatened, 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 ▇Skadden, Arps, Slate, M▇▇▇▇▇▇ ▇▇& F▇▇▇ LLP, special counsel for the CompanyFund, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and The Fund is validly existing as a corporation in good standing and has a valid legal existence under the laws of the jurisdiction in which it is chartered or organizedDelaware Statutory Trust Act, with full corporate the trust power and authority to own or leaseown, as the case may be, lease and to operate its properties and to conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation statutory trust and is in good standing under the laws of each jurisdiction jurisdiction, as required, in which requires the Fund has informed such qualificationcounsel, as set forth in an officer’s certificate, that it owns or leases real property or conducts material operations; and the Fund has no subsidiaries;
(ii) The Fund has statutory trust power and authority under the Delaware Statutory Trust Act to execute, deliver and perform all of its obligations under the outstanding shares Underwriting Agreement and the Fund Agreements. The execution and delivery by the Fund of capital stock the Underwriting Agreement and the Fund Agreements and the consummation by the Fund of ATX Technologies and ATX Europe the transactions contemplated thereby have been duly authorized by all requisite action on the part of the Fund. Each of the Underwriting Agreement and the Fund Agreements has been duly authorized, executed and delivered by the Fund.
(iii) Each of the Fund Agreements (other than the Advisory Agreement) constitutes the valid and binding obligation of the Fund enforceable against the Fund in accordance with its terms under the Applicable Laws of the State of New York. The Advisory Agreement constitutes the valid and binding obligation of the Fund enforceable against the Fund in accordance with its terms under the Applicable Laws of the State of Delaware.
(iv) The issuance and sale of the Securities, the execution and delivery by the Fund of the Underwriting Agreement and of each of the Fund Agreements, the performance by the Fund of its obligations under the Underwriting Agreement (including the issuance and sale of the Securities) and each of the Fund Agreements, each in accordance with its terms, (i) do not and will not conflict with or does not and will not constitute a breach of the Declaration or by-laws of the Fund, (ii) do not and will not conflict with and will not constitute a violation of, or a default under, any Applicable Contract or (iii) cause the creation of any security interest or lien upon any of the property or assets of the Fund pursuant to any Applicable Contract.
(v) Neither the issuance and sale of the Securities, the execution, delivery or performance by the Fund of its obligations under the Underwriting Agreement (including the issuance and sale of the Securities) or the Fund Agreements nor the compliance by the Fund with the terms and provisions thereof contravenes or will contravene any provision of Applicable Law or Applicable Order.
(vi) No Governmental Approval, which has not been obtained or taken and is not in full force and effect, is required to authorize, or is required in connection with, the execution, delivery or performance of the Underwriting Agreement or any of the Fund Agreements or the enforceability of the Fund Agreements against the Fund.
(vii) Neither the execution, delivery or performance by the Fund of its obligations under the Underwriting Agreement or the Fund Agreements nor compliance by the Fund with the terms and provisions thereof will contravene any Applicable Order.
(viii) The Fund is registered with the Commission pursuant to Section 8 of the 1940 Act as a diversified, closed-end management investment company; and the Declaration and by-laws of the Fund comply in all material respects with all applicable provisions of the Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations.
(ix) The Fund has an authorized equity capitalization as set forth in the Prospectus (without giving effect to the issuance and sale of the Securities); all of the outstanding Common Shares have been duly authorized and validly authorized and issued and are fully paid and nonassessable, and, non-assessable (except as otherwise set forth provided in the last sentence of Section 3.8 of the Declaration as described in the Prospectus), all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized capitalization is as set forth representing undivided beneficial ownership interests in the Prospectusassets of the Fund; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock Securities have been duly and validly authorized and issued and are fully paid and nonassessable; by all necessary action of the Securities being sold hereunder by Fund under the Company have been duly and validly authorized, Delaware Statutory Trust Act and, when issued and delivered to and paid for by the Underwriters pursuant to this the Underwriting Agreement, will be validly issued, fully paid and nonassessablenon-assessable (except as provided in the last sentence of Section 3.8 of the Declaration as described in the Prospectus), representing undivided beneficial ownership interests in the assets of the Fund; the Securities being sold hereunder by specimen certificate for the Company are duly listedCommon Shares complies in all material respects with the applicable requirements of the Declaration, the by-laws of the Fund, the Delaware Statutory Trust Act and admitted and authorized for tradingthe rules of the NYSE, subject to official notice of issuance and evidence of satisfactory distribution, in each case as in effect on the Nasdaq National Market; Closing Date. In rendering the certificates opinion set forth in this paragraph (ix), such counsel may assume that if a holder of Common Shares requests a certificate representing such holder’s Common Shares, such certificate will conform to the specimen examined by such counsel in connection with rendering such opinion and will have been signed by an authorized officer of the transfer agent and registrar for the Securities are in valid Common Shares and sufficient form; the registered by such transfer agent and registrar.
(x) No holders of outstanding shares of capital stock of the Company Common Shares are not entitled as such to any preemptive or other rights to subscribe for any Securities under any Applicable Contract, under the Securities; and, except as Declaration or by-laws of the Fund or under the Delaware Statutory Trust Act.
(xi) The statements set forth under the heading “Description of Capital Structure” in the Prospectus, no optionsinsofar as such statements purport to summarize certain provisions of the 1940 Act, warrants the Delaware Statutory Trust Act, the Common Shares or other rights to purchasethe Declaration, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests fairly summarize such provisions in all material respects.
(xii) The statements set forth under the heading “Anti-Takeover and Other Provisions in the Company are outstanding;Fund’s Governing Documents” in the Prospectus, insofar as such statements purport to summarize certain provisions of the Declaration and the Fund’s bylaws, fairly summarize such provisions in all material respects.
(ivxiii) The statements in the Prospectus under the heading “Taxation,” insofar as such statements constitute a summary of the U.S. federal income tax laws referred to therein, summarize accurately in all material respects the U.S. federal income tax laws referred to therein.
(xiv) To the knowledge of such counsel, there is are no legal or governmental proceedings pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving to which the Company or any of the Subsidiaries or its or their property of Fund is a character party that are required to be disclosed in the Registration Statement which is Prospectus pursuant to Item 12 of Form N-2 that are not adequately disclosed in the Prospectusso disclosed, and there is are no franchiseagreements, contract contracts, indentures, leases or other document of a character instruments that are required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; required by the Act, the 1940 Act or the Rules and Regulations. Such counsel shall also state that (1) they have been informed that the Securities have been approved for listing, subject to official notice of issuance, and admitted and authorized for trading on the New York Stock Exchange, and the statements included in the Prospectus Fund’s registration statement on Form 8-A under the headings “Description 1934 Act is effective; (2) they have been advised by the staff of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
the Commission that (va) the Registration Statement has become been declared effective under and that no stop order suspending the Acteffectiveness of the Registration Statement or the 1940 Act Notification has been issued and, to the knowledge of such counsel, no proceedings for that purpose have been instituted or are pending or threatened by the Commission and (b) no notice from the Commission has been issued pursuant to Section 8(e) of the 1940 Act with respect to the 1940 Act Notification or the Registration Statement; any required (3) the filing of the Prospectus, and any supplements thereto, Prospectus pursuant to Rule 424(b) 497 under the Rules and Regulations has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness 497 of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened Rules and Regulations and (4) the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express make no opinionstatement) comply as to form in all material respects with the applicable requirements of the Act, the 1940 Act and the rules thereunder; Rules and Regulations. In addition, such counsel has shall note that they have participated in conferences with officers and other representatives of the Fund, the Adviser, counsel for the Adviser, representatives of the independent registered public accounting firm of the Fund and Representatives of the Underwriters and their counsel at which the contents of the Registration Statement and the Prospectus and related matters were discussed. Such counsel need not pass upon, or assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, and need not have made any independent check or verification thereof. Such counsel shall state that no reason facts have come to their attention that have caused them to believe that on the Effective Date or the date the Registration Statement was last deemed amendedStatement, at the Registration Statement time it became effective, contained any an untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus Prospectus, as of its date and on as of the Closing Date included Date, contained or includes any contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that in each case, other than case such counsel need not express any view as to the financial statements statements, schedules and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed data and delivered financial projections included or incorporated by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with reference therein or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company excluded therefrom or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument exhibits to which the Company or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State States of Texas New York and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company Fund and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives You shall have received from on the Closing Date an opinion of W. R▇▇▇▇▇▇ ▇▇▇▇▇ L.L.P.▇, Esq., counsel for the Underwriters, such opinion or opinionsAdviser, dated the Closing Date and addressed to the Representativesyou, with respect to the issuance and sale as Representatives of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representativesseveral Underwriters, to the effect that:
(i) The Adviser has been duly formed and is validly existing in good standing as a limited liability company under the laws of the State of Wisconsin, with full limited liability company power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus, and is duly qualified to do business and is in good standing as a foreign limited liability company under the laws of each jurisdiction which requires such qualification.
(ii) The Adviser is duly registered under the Advisers Act as an investment adviser and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under this Agreement or each of the Adviser Agreements as contemplated by the Prospectus;
(iii) The Adviser has full power and authority to enter into this Agreement and each of the Custody Adviser Agreements;
(iv) This Agreement has been duly authorized, executed and Power delivered by the Adviser;
(v) Each of Attorney the Adviser Agreements have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Adviser and each Adviser Agreement is a valid and legally binding on agreement of the Selling StockholderAdviser, enforceable against the Adviser in accordance with its terms except as rights to indemnity and contribution may be limited by federal or state securities laws and subject to the Selling Stockholder has full legal right qualification that the enforceability of the Adviser’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and authority other laws relating to sell, transfer or affecting creditors’ rights generally and deliver by general equitable principles (regardless of whether enforcement is sought in the manner provided a proceeding in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderequity or at law);
(iivi) assuming that This Agreement and each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained Adviser Agreements comply in all material respects with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) all applicable provisions of the UCC) to such Securities purchased by such UnderwriterAct, the 1940 Act, the Advisers Act, the Rules and no action based on an adverse claim (within Regulations and the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such SecuritiesAdvisers Act Rules and Regulations;
(iiivii) no consentNeither the issuance and sale of the Securities, approvalthe execution, authorization delivery or order performance of any court this Agreement or governmental agency or body is required for each of the Adviser Agreements nor the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other Adviser of the transactions herein or therein contemplated by (i) conflicts or will conflict with or constitutes or will constitute a breach of or default under the Selling Stockholder operating agreement or the fulfillment bylaws, or other organizational documents, of the terms hereof by the Selling Stockholder Adviser, (ii) conflicts or will conflict with, result in or constitutes or will constitute a breach of or violation of, or constitute a default under any law material agreement, indenture, lease or other instrument to which the charter Adviser is a party or By-laws by which it or any of its properties may be bound or (iii) violates or will violates any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Adviser or any of its properties and material to the business and operations of the Selling Stockholder Adviser or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries it is a party or bound, by which it may be bound or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or which any of the property or assets of the Adviser is subject;
(viii) The description of the Adviser and its subsidiaries business in the Prospectus complies in all material respects with all requirements of any courtthe Act, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas 1940 Act and the State Rules and Regulations;
(ix) To the knowledge of Delaware such counsel, there is no pending or the Federal laws of the United Statesthreatened action, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablsuit or proceeding by or before an
Appears in 1 contract
Sources: Underwriting Agreement (Madison Strategic Sector Premium Fund)
Conditions to the Obligations of the Underwriters. The obligations of ------------------------------------------------- the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder Thermo Electron 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 Stockholder Thermo Electron made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Thermo Electron of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City Eastern time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City Eastern time on such date date, or (ii) 9:30 AM 12:00 Noon on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City Eastern time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused furnished to the Representatives the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for General Counsel of the Company, to have furnished to the Representatives their opinionThermoTrex and Thermo Electron, dated the Closing Date and addressed to the RepresentativesDate, to the effect that:
(i) each Each of the Company, ATX Technologies Company and ATX Europe GmbH (“ATX Europe”) its Significant Subsidiaries has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedof its incorporation, with full corporate power and authority to own or lease, as the case may be, and to operate lease its properties and conduct its business as described in the Prospectus, and is duly qualified to do business and is in good standing in each jurisdiction in which the character of the business conducted by it or the location of the properties owned or leased by it makes such qualification necessary, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect.
(ii) Each of Thermo Electron and its Significant Subsidiaries (as defined in Section 15) has been duly organized and is validly existing as a foreign corporation and is in good standing under the laws of each the jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies its incorporation, with full corporate power and ATX Europe have been duly authority to own or lease its properties and validly authorized and issued and are fully paid and nonassessable, and, except conduct its business as otherwise set forth described in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s 's authorized capitalization capital stock and outstanding capital stock as of ___________, 1998 is as set forth in the ProspectusProspectus under the caption "Description of Capital Stock"; the capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for tradinglisting, subject to official notice of issuance and evidence of satisfactory distributionissuance, on the Nasdaq National MarketAmerican Stock Exchange; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company there are not entitled to no preemptive or other rights to subscribe for or to purchase, or any restriction upon the Securitiesvoting or transfer of, any of the Securities pursuant to the Company's corporate charter, by-laws, other governing documents, or any agreement or other instrument known to such counsel to which the Company or a Subsidiary thereof is a party or by which the Company or a Subsidiary thereof may be bound or to which any of their respective properties is subject; and, to such counsel's knowledge, neither the filing of the Registration Statement nor the offering or sale of the Securities as contemplated by this Agreement gives rise to any rights for or relating to the registration of any shares of Common Stock except such as have been waived or satisfied; except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding; and all of the outstanding shares of capital stock of each Significant Subsidiary of the Company have been duly and validly authorized and issued and are fully paid and nonassessable and are owned directly or indirectly by the Company free and clear of any claim, lien, encumbrance or security interest known to such counsel (except for certain obligations of the Company pursuant to stock and employee benefit plans maintained for the benefit of employees, officers, directors and consultants of the Company and its Subsidiaries);
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character Subsidiary required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectusso disclosed, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit theretoexhibit, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement as of the Effective Date and the Prospectus as of its date (other than the financial statements and schedules and other financial financial, statistical and statistical accounting information contained therein, therein as to which such counsel need express no opinion) comply complied as to form in all material respects with the applicable requirements of the Act and the rules thereunder; ;
(vi) this Agreement has been duly authorized, executed and delivered by the Company and Thermo Electron;
(vii) to the knowledge of such counsel, no consent, approval, authorization, filing with or order of any court or governmental agency or body is required for the consummation by the Company of the transactions contemplated herein, except such as have been obtained under the Act, such as may be required under the blue sky and state securities laws of any jurisdiction applicable to the offering and sale of the Securities by the Underwriters and such as may be required for the clearance of the underwriting arrangements relating to such offering and sale with the NASD (as to which such counsel need express no opinion), and such other approvals (specified in such opinion) as have been obtained; and
(viii) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or by-laws of the Company (or any of its Significant Subsidiaries), ThermoTrex or Thermo Electron, or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company (or any of its Significant Subsidiaries), ThermoTrex or Thermo Electron, is a party or bound or any statute, law, rule, regulation, judgment, order or decree applicable to the Company (or any of its Significant Subsidiaries) or to ThermoTrex or Thermo Electron of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of such entities or any of its or their respective properties. In addition, such counsel shall state that they have participated in conferences with officers and other representatives of the Company, representatives of the independent accountants of the Company, representatives of the Underwriters and representatives of counsel for the Underwriters, at which the contents of the Registration Statement and the Prospectus and related matters were discussed and, although such counsel need not pass upon, and need not assume any responsibility for, the accuracy, completeness or fairness of any statement contained in the Registration Statement or the Prospectus (except for those statements referred to in the opinions expressed in the first two clauses of subsection (iii) above) and has made no reason independent check or verification thereof, such counsel shall state that on the basis of the foregoing, no facts have come to such counsel's attention that has led such counsel to believe that the Registration Statement, on the Effective Date or at the date the Registration Statement was last deemed amendedExecution Time, the Registration Statement contained any 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 Prospectus Prospectus, as of its date and on or the Closing Date date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each casemisleading, other than the financial statements and other financial and statistical information contained therein, as to which except that such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect opinion or belief with respect to the offering financial statements, financial statement schedules and sale of the Securities other financial, accounting and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Actstatistical data included therein. In rendering such opinion, such counsel may rely (A) as opinion shall be limited to matters involving the application of laws of any jurisdiction other than the State Commonwealth of Texas and Massachusetts, the United States or the General Corporation Law of the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in further such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) may rely as to matters of fact, to the extent they deem such counsel deems proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Datethereto.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ L.L.P.& ▇▇▇▇▇▇▇▇▇, LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or Board, Chief Executive Officer, the President or a vice president and the principal financial Treasurer or accounting officer Secretary of the Company, dated the Closing applicable Settlement Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that, to the best of such person's knowledge:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date date of the certificate with the same effect as if made on the Closing Date date of the certificate, 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;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s such person's knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Change, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder Thermo Electron shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opiniona certificate of Thermo Electron, signed by its President or a Vice President and by its Treasurer or Secretary, dated the Closing Date and addressed to the Representativesapplicable Settlement Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that, to the best of such person's knowledge:
(i) this Agreement the representations and the Custody Agreement and Power warranties of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided Thermo Electron in this Agreement are true and correct on and as of the Custody Agreement date of the Securities being sold by such Selling Stockholder hereundercertificate with the same effect as if made on the date of the certificate, and Thermo Electron 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 settlement date;
(ii) assuming no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that each Underwriter acquires its interest purpose have been instituted or, to the best of such person's knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Securities it has purchased from the Selling Stockholder without notice Prospectus (exclusive of any adverse claim supplement thereto), there has been no Material Adverse Change, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(f) On the date of this Agreement, the Closing Date and any settlement date you shall have received a letter from each accounting firm whose report appears in the Prospectus, dated the date of this Underwriting Agreement, the Closing Date or the settlement date, as the case may be, and addressed to you, confirming that they are independent certified public accountants within the meaning of Section 8-105 the Act and the rules thereunder, and stating, as of the UCCdate of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of each such letter), the conclusions and findings of each Underwriter that has purchased such Securities firm with respect to the financial information and other matters covered by its letter delivered to you concurrently with the execution of this Agreement, and with respect to each letter delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, the settlement date confirming the conclusions and that has had findings set forth in such Securities credited prior letter.
(g) Subsequent to the securities account Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or accounts of such Underwriters maintained with The Depository Trust Company decrease specified in the letter or such other securities intermediary will have acquired a security entitlement letters referred to in paragraph (within the meaning of Section 8-102(a)(17g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the UCC) to such Securities purchased by such Underwritercondition,(financial or otherwise), and no action based on an adverse claim (within the meaning of Section 8-105 earnings, business or properties of the UCCCompany and its Subsidiaries as a whole, whether or not from transactions arising in the ordinary course of business, the effect of which, in any case referred to in clause (i) may be asserted against such Underwriter with respect to such Securities;
or (iiiii) no consentabove, approvalis, authorization or order of any court or governmental agency or body is required for in the consummation by the Selling Stockholder judgment of the transactions contemplated hereinRepresentatives, except such so material and adverse as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection to make it impractical or inadvisable to proceed with the purchase and distribution offering or delivery of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto).
(h) The Securities shall have been listed and admitted and authorized for trading on the American Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representatives.
(i) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from --------- ThermoTrex addressed to the Representatives.
(j) Prior to the Closing Date or the fulfillment settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and conditions specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablthis Sectio
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The -------------------------------------------------- obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of either of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused furnished to the Representatives the opinion of ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ LLP& Company, Cayman Islands counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the RepresentativesDate, to the effect that:
(i) each of the Company and its subsidiaries that are incorporated under the laws of the Cayman Islands (individually a "Cayman Subsidiary" and collectively the "Cayman Subsidiaries") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Cayman Islands, with full corporate power and authority to own its properties and conduct its business as described in the Final Prospectus;
(ii) all the outstanding shares of capital stock of each Cayman Subsidiary have been duly and validly authorized and issued and are fully paid and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of the Cayman Subsidiaries are owned, directly or indirectly, by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interests, claims, liens or encumbrances;
(iii) the outstanding shares of Ordinary Shares have been duly and validly authorized and issued and are fully paid; the Securities being sold hereunder by the Company have been duly and validly authorized and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement will be fully paid; the certificates for the Securities are in valid and sufficient form; and the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and the liability of a shareholder in respect of such Securities is limited to the amount that the shareholder has agreed to pay for such Securities and the Company cannot call for additional sums to be paid by the shareholders in respect of such Shares;
(iv) this Agreement has been duly authorized, executed and delivered by the Company and constitutes the legal, valid and binding obligations of the Company enforceable in accordance with its terms;
(v) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Cayman Subsidiaries of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus; and the summaries of legal and regulatory matters and proceedings under the heading "Description of Ordinary Shares" fairly summarize the matters therein described;
(vi) neither the issue and sale of the Securities, nor the consummation of any other of the transactions contemplated herein nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach or violation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Cayman Subsidiaries pursuant to, (i) the Memorandum and Articles of Association of the Company or the Cayman Subsidiaries or (ii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Cayman Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Cayman Subsidiaries or any of its or their respective properties, except where such breach, violation or imposition would not individually or in the aggregate have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole;
(vii) the Company's agreement to the choice of law provisions set forth in Section 14 hereof will be recognized by the courts of the Cayman Islands; the Company can ▇▇▇ and be sued in its own name under the laws of the Cayman Islands, the irrevocable submission of the Company to the non- exclusive personal jurisdiction of a New York Court, the waiver by the Company of any objection to the venue of a proceeding of a New York Court and the agreement of the Company that this Agreement shall be governed by and construed in accordance with the laws of the State of New York are legal, valid and binding; and judgment obtained in a New York Court arising out of or in relation to the obligations of the Company under this Agreement, not being a sum payable in respect of taxes or other charges of a like nature or a fine or other penalty, is enforceable against the Company in the courts of the Cayman Islands; and
(viii) The Company is not entitled to any immunity on the basis of sovereignty or otherwise in respect of its obligations under this Agreement and could not successfully interpose any such immunity as a defense in any suit or action brought or maintained in respect of its obligations under this Agreement. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the laws of the Cayman Islands, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. Reference to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Company shall have furnished to the Representatives the opinion of Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P., counsel for the Company, ATX Technologies dated the Closing Date, to the effect that:
(i) each subsidiary of the Company incorporated in the United States (individually a "Domestic Subsidiary" and ATX Europe GmbH (“ATX Europe”collectively the "Domestic Subsidiaries") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where such breach, violation or imposition would not individually or in the aggregate have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe each Domestic Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe the Domestic Subsidiaries are owned by the Company either Company, directly or through wholly owned subsidiaries indirectly, free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interestinterests, claimclaims, lien liens or encumbranceencumbrances;
(iii) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distributionissuance, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the SecuritiesAmerican Stock Exchange; and, except as set forth in the Final Prospectus, to such counsel's knowledge, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of Ordinary Shares or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property subsidiaries of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included descriptions contained in the Final Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and heading "Taxation" constitute fair summaries of such legal matters, agreements, documents or proceedingsthose statues and regulations discussed therein applicable to the offering of the Securities;
(v) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Pro spectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need not express no any opinion) comply as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date or at the date Execution Time the Registration Statement was last deemed amended, the Registration Statement contains or contained any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Final Prospectus as of its their date and on the Closing Date included or includes include any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need not express no any opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Prospectus, will not be, be an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viiivii) to such counsel's knowledge, no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction (and the securities laws of any jurisdiction outside the United States) in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Final Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ixviii) to such counsel's knowledge, neither the issue and sale of the Securities, nor the consummation of any other of the transactions contemplated herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries its subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument instrument, filed as a material contract by the Company under the Exchange Act, to which the Company or the Subsidiaries its subsidiaries is a party or bound or to which its or their respective property is subject, or (iiiii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries its subsidiaries or any of its or their respective properties;, except where such breach, violation or imposition would not individually or in the aggregate have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole; and
(xix) except Except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto)Final Prospectus, to such counsel's knowledge, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Securities Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References Reference to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(cd) The Company shall have furnished to the Representatives the opinion of ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Bolivian counsel for the Company, dated the Closing Date, with respect to matters of title and to corporate status in Bolivia and other related matters as the Representatives may reasonably require.
(e) The Company shall have furnished to the Representatives the opinion of Bufete ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇, Honduran counsel for the Company, dated the Closing Date, with respect to matters of title and to corporate status in Honduras and other related matters as the Representatives may reasonably require.
(f) The Company shall have furnished to the Representatives the opinion of ________________, Mexican counsel for the Company, dated the Closing Date, with respect to matters of title and to corporate status in Mexico and other related matters as the Representatives may reasonably require.
(g) The Representatives shall have received from Winston & ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(dh) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President Company and the principal financial or accounting officer Vice President of the CompanyFinance and Chief Financial Officer of Apex Corporation, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablFinal Prospectu
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Underwriters' Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and any settlement date pursuant to Section 3 hereofas of the Closing Date, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will shall have become effective not later than (i) 6:00 PM P.M. New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM P.M. New York City time on such date or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM P.M. New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be Prospectus shall 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 Statement, as amended from time to time, 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 their opinionRepresentatives:
(i) the opinion of the General Counsel, an Assistant General Counsel, an Associate General Counsel or other senior counsel of the Company, dated the Closing Date and addressed to the RepresentativesDate, to the effect that:
(iA) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedState of New York, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction within the United States which requires such qualificationqualifications wherein it owns or leases material properties or conducts material business;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iiiB) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms Securities conform in all material respects to the description thereof contained in the Prospectus;
(C) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws affecting creditors' rights generally from time to time in effect, and subject, as to enforceability, to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and the outstanding shares of Common Stock Securities have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; in the Securities being sold hereunder case of the Underwriters' Securities, or by the Company are duly listedpurchasers thereof pursuant to Delayed Delivery Contracts, and admitted and authorized for tradingin the case of any Contract Securities, subject to official notice of issuance and evidence of satisfactory distributionwill constitute legal, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock binding obligations of the Company are not entitled to preemptive or the benefits of the Indenture (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, and other similar laws affecting creditors' rights generally from time to subscribe for the Securities; and, except as set forth time in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstandingeffect);
(ivD) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit theretoexhibit, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(vE) the Registration Statement has and any amendments thereto have become effective under the Act; any required filing of the Prospectus, Prospectus and any supplements thereto, supplement thereto pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement Statement, as amended, has been issued, no proceedings for that purpose have been instituted or threatened and are pending or contemplated under the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion)Act;
(viF) this Agreement has and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viiiG) no consent, approval, authorization, approval or other action by, and no notice to, consent of, order of, or filing with with, any United States Federal or order of any court New York governmental authority or governmental agency or regulatory body is required in connection with for the consummation of the transactions contemplated hereinherein or in any Delayed Delivery Contracts, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ixH) neither such counsel has no reason to believe that (1) the Registration Statement and the Prospectus (except the financial statements and the notes thereto and other information of an accounting or financial nature included therein, and the Statement of Eligibility (Form T-1) included as an exhibit to the Registration Statement, as to which such counsel need express no view) were not appropriately responsive in all material respects to requirements of the Act and the applicable rules and regulations of the Commission thereunder and (2) the Registration Statement or any amendment thereof at the time it became effective contained any 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 Prospectus, as amended or supplemented, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (in each case except for the financial statements and the notes thereto and other information of an accounting or financial nature included therein, as to which such counsel need express no view); and
(I) none of the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor contemplated or the fulfillment of the terms hereof, nor the consummation hereof or of the Merger any Delayed Delivery Contracts will conflict with, result in a breach or violation of, or imposition of any lienconstitute a default under, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan indenture or other agreement or other agreement, obligation, condition, covenant or instrument known to such counsel and to which the Company or the Subsidiaries any of its subsidiaries is a party or bound or to which its or their property is subjectbound, or (iii) any statute, law, rule, regulation, judgment, order decree or decree regulation known to such counsel to be applicable to the Company or the Subsidiaries any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, body or arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its subsidiaries. The statements described in one or their properties;
more of paragraphs (x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement theretoB), no holders (C), (E), (F), (G) and (H)(1) of securities this subsection 5(b)(i) may be omitted from the opinion of such counsel; provided, however, that in such event the Company shall also have rights furnished to the registration Representatives the corresponding opinion or letter of such securities under Cravath, Swaine & Moore, counsel for the Registration Statement;
Company, descr▇▇▇▇ ▇▇ subsection ▇(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, ▇)(ii) exchanged or 5(b)(iii) immediately following.
(ii) in the event that the statements described in one share or more of Common Stock for each shares of outstanding common stock in ATX Technologiesparagraphs (B), (iiiC), (E), (F) exchanged 3,652,605 shares or (G) of Common Stock foregoing subsection 5(b)(i) is omitted from the opinion delivered pursuant to such subsection, the opinion of Cravath, Swaine & Moore, counsel for approximately $6.0 million of long-term deferred interest owed under the terms of Company, dated the line of credit issued by ▇▇▇▇▇▇g Date, to ▇▇▇ to the Company and (iv) assumed all ▇ffect of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Actstatements so omitted. In rendering such opinionopinions, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters Underwriters; and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References .
(iii) in the event that the statements in paragraph (H)(1) of subsection 5(b)(i) are omitted from the opinion provided pursuant to such subsection, a letter of Cravath, Swaine & Moore dated the Closing Date to the effec▇ ▇▇▇▇, having par▇▇▇▇▇ated in conferences with certain officers of, and with the accountants for, the Company and having made certain inquiries and investigations in connection with the preparation of the Registration Statement and the Prospectus, such counsel has no reason to believe that (i) the Registration Statement and the Prospectus (except the financial statements and the notes thereto and other information of an accounting or financial nature included therein, and the Statement of Eligibility (Form T-1) included as an exhibit to the Registration Statement, as to which such counsel need express no view) were not appropriately responsive in this paragraph all material respects with requirements of the Act and the applicable rules and regulations of the Commission thereunder and (bii) shall also include any supplements thereto the Registration Statement at the Effective Date contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus on the Closing DateDate includes any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (in each case except for the financial statements and the notes thereto and other information of an accounting or financial nature included therein, as to which such counsel need express no view).
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.Davis Polk & Wardwell, counsel for the Underwriters, such opinion or opinionsopinio▇ ▇▇ ▇▇▇▇▇ons, dated dat▇▇ the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Indenture, any Delayed Delivery Contracts, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer (or Vice President and Treasurer) of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement, the Prospectus, any supplements supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date 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 Statement, as amended, 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 Prospectus (exclusive of any supplement thereto)Prospectus, there has been no material adverse effect on change in the condition (financial or otherwiseother), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a wholesubsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto)Prospectus.
(e) The Selling Stockholder At the Closing Date, PricewaterhouseCoopers LLC shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opiniona letter or letters (which may refer to a letter previously delivered to one or more of the Representatives), dated as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder, that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) this Agreement in their opinion the audited financial statements and schedules thereto included or incorporated in the Registration Statement and the Custody Agreement Prospectus and Power reported on by them comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, Exchange Act and the Selling Stockholder has full legal right published rules and authority regulations thereunder with respect to sell, transfer financial statements and deliver financial statement schedules included or incorporated in annual reports on Form 10-K under the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderExchange Act;
(ii) assuming that each Underwriter acquires its interest on the basis of a reading of the unaudited financial statements included or incorporated in the Securities it has purchased from Registration Statement and the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 Prospectus and of the UCC), each Underwriter that has purchased such Securities delivered on latest unaudited financial statements made available by the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts 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 such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter significance with respect to the comments set forth in such Securities;letter; a reading of the minutes of the meetings of the stockholders, directors and executive committees of the Company and the Subsidiaries since the date of the latest audited balance sheet, through a specified date not more than five business days prior to the date of the letter; 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 the date of the most recent financial statements incorporated in the Registration Statement and the Prospectus, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated in the Registration Statement and the Prospectus do not comply as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect to financial statements included or incorporated in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not stated on a basis substantially consistent with that of the audited financial statements included or incorporated in the Registration Statement and the Prospectus; or
(2) with respect to the period subsequent to the date of the most recent financial statements incorporated in the Registration Statement and the Prospectus, there were, at a specified date not more than five business days prior to the date of the letter, any increases in long-term debt of the Company and its subsidiaries or decreases in the capital stock of the Company or decreases in the stockholders' equity of the Company and its subsidiaries as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated in the Registration Statement and the Prospectus, except in all instances for increases 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; and
(iii) no consent, approval, authorization or order they have performed certain other procedures as a result of any court or governmental agency or body is required for which they determined that the consummation by the Selling Stockholder information described in a schedule to be delivered on behalf of the transactions contemplated hereinUnderwriters of an accounting, except such as may have been obtained under financial or statistical nature (which is limited to accounting, financial or statistical information derived from the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution general ledger of the Securities by Company) set forth in the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict withRegistration Statement, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablas
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines 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 Stockholder 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 Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 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& ▇▇▇▇▇▇, Professional Corporation, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to in substantially the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and is validly existing form attached as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. Exhibit B. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and Delaware, the State of Delaware California or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives Company shall have received requested and caused ▇▇▇▇▇▇▇▇▇, Held & ▇▇▇▇▇▇, Ltd., intellectual property counsel for the Company, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives. Such counsel shall state that they are familiar with the technology used by the Company in its business and the manner of its use thereof and have read the Registration Statement and the Final Prospectus, including particularly the portions of the Registration Statement and the Final Prospectus referring to patents, trade secrets, trademarks, service marks or other proprietary information or materials and that in their opinion:
(i) The information in the Final Prospectus under the caption “Risks Relating to Our Company — Risks Relating to our Intellectual Property” and the information incorporated by reference into the Final Prospectus from “Business – License from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P.College of Medicine” and the first and third paragraphs under the caption “Our Intellectual Property” in Item I of the 2003 Form 10-K, to the extent that such information constitutes matters of law or legal conclusions, has been reviewed by such counsel and is an accurate and fair summary of such matters and conclusions; and
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by, licensed by or affecting the business or operations of the Company which are pending or threatened against the Company or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ College of Medicine or any of their respective officers or directors.
(d) The Company shall have requested and caused ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, intellectual property counsel for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ College of Medicine, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives. Such counsel shall state that they are familiar with the technology used by the Company in its business and the manner of its use thereof and have read the Registration Statement and the Final Prospectus, including particularly the portions of the Registration Statement and the Final Prospectus referring to patents, trade secrets, trademarks, service marks or other proprietary information or materials and that in their opinion:
(i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ College of Medicine is listed in the records of the United States Patent and Trademark Office as the sole holder of record of the patents listed on a schedule to such opinion (the “Patents”) and each of the applications listed on Schedule 1 to such opinion (the “Applications”). ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ College of Medicine has granted the Company an exclusive worldwide license to each of the Patents and Applications listed in such schedule. To the knowledge of such counsel, there are no claims of third parties to any ownership interest, license or lien with respect to any of the Patents or Applications, other than the U.S. Government to the extent indicated on such schedule. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications. To the knowledge of such counsel, the Applications are being pursued by the Company or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ College of Medicine (as applicable). To the knowledge of such counsel, except as indicated on such schedule, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ College of Medicine (apart from the license to the Company) owns as its sole property the Patents and Applications;
(ii) The license agreement between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ College of Medicine and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, dated October 1, 1994, as amended, has been validly and effectively terminated and neither ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ nor his successors or assigns retain any residual interest in any of the Patents or Applications. The license agreement between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ College of Medicine and DuPont Merck Pharmaceutical Company, dated August 30, 1996, as amended, has been validly and effectively terminated and neither DuPont Merck Pharmaceutical Company nor its successors or assigns retain any residual interest in any of the Patents or Applications;
(iii) The Company or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ College of Medicine, as applicable, is listed in the records of the appropriate foreign offices as the sole holder of record of the foreign patents listed on a schedule to such opinion (the “Foreign Patents”) and each of the applications listed on a schedule to such opinion (the “Foreign Applications”). ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ College of Medicine has granted the Company an exclusive worldwide license to each of the Foreign Patents and Foreign Applications listed in such schedule that are shown as being owned by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ College of Medicine. Such counsel knows of no claims of third parties to any ownership interest or lien with respect to the Foreign Patents or Foreign Applications. Such counsel is not aware of any material defect of form in the preparation or filing of the Foreign Applications. To the knowledge of such counsel, the Foreign Applications are being pursued by the Company or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ College of Medicine (as applicable). To the knowledge of such counsel, the Company or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ College of Medicine (apart from the license to the Company), as applicable, owns as it sole property the Foreign Patents and pending Foreign Applications; and
(iv) Such counsel knows of no reason why the Patents or Foreign Patents are not valid as issued. Such counsel has no knowledge of any reason why any patent to be issued as a result of any Application or Foreign Application would not be valid or would not afford the Company or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ College of Medicine, as applicable, useful patent protection with respect thereto. In addition, such counsel shall state that they have reviewed the Registration Statement and Final Prospectus and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of any statements contained in the Registration Statement or the Final Prospectus (other than as specified above), and any supplements or amendments thereto, on the basis of the foregoing, nothing has come to their attention which would lead them to believe that either the Registration Statement or any amendments thereto, at the time the Registration Statement or such amendments became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Final Prospectus, as of its date or at the date of such opinion letter, contained an untrue statement of a material fact or omitted to state a material fact regarding the Company’s Intellectual Property necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no belief as to the financial statements or schedules or other financial or statistical data derived therefrom, included or incorporated by reference in the Registration Statement or the Final Prospectus or any amendments or supplements thereto).
(e) The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation, FDA regulatory counsel for the Company, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives, in substantially the form contained in Exhibit B.
(f) The Representatives shall have received from Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(dg) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus 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 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 Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(h) The Company shall have requested and its Subsidiariescaused Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Representatives, in substantially the form set forth in Exhibit C.
(i) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the 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 (h) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company, 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 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 amendment thereof) and the Final Prospectus (exclusive of any supplement thereto).
(ej) The Selling Stockholder Prior to the Closing Date, the Company shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinionsuch further information, dated certificates and documents as the Closing Date Representatives may reasonably request.
(k) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq National Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and from WS Investment Company addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the effect that:
(i) Representatives and counsel for the Underwriters, this Agreement and all obligations of the Custody Agreement and Power Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of Attorney have been duly authorized, executed and such cancelation 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 Selling Stockholderoffice of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Custody Agreement is valid and binding on Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other place as the Selling Stockholder, Company and the Selling Stockholder has full legal right and authority to sellRepresentatives shall agree upon, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablDate.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters Underwriters, as to the Shares to be delivered at each Time of Delivery, to purchase the Underwritten Securities and the Option Securities, as the case may be, Shares shall be subject to the accuracy of the representations and warranties on the part of the Company and of the Selling Stockholder Stockholders contained herein as of the Execution Time, the Closing Date Time and any settlement date pursuant to Section 3 hereofsuch Time of Delivery, to the accuracy of the statements of the Company and of the Selling Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and by each of the Selling Stockholder Stockholders of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM p.m. New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM p.m. New York City time on such date or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM p.m. New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be shall 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 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 Underwriters the opinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("▇▇▇▇ ▇▇▇▇▇"), counsel for the Company, dated such Time of Delivery, to the effect that:
(i) This Agreement and caused the International Underwriting Agreement have been duly executed and delivered by the Company;
(ii) No consent, approval, authorization, order, registration or qualification of or with any New York or federal court or governmental agency or body is required for the sale of the Shares or the consummation by the Company of the transactions contemplated by the Final Prospectus, this Agreement or the International Underwriting Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters and the International Underwriters;
(iii) Except as noted below, the last sentence of the first paragraph, the first sentence of the second paragraph and the entire third paragraph of the section of the Final Prospectus relating to the Shares captioned "Certain Considerations -- Taxation of the Company" contain a fair and accurate general description of the U.S. Federal tax provisions discussed therein. With respect to the last sentence of the first paragraph of the section of the Prospectus relating to the Shares captioned "Certain Considerations -- Taxation of the Company," no opinion is expressed with respect to whether the exemption of Section 883 of the Internal Revenue Code of 1986 is available or applicable to the Company or any of its subsidiaries;
(iv) Assuming that New York law is applicable, upon delivery of the Shares pursuant to this Agreement and the International Underwriting Agreement and payment therefor as contemplated herein and therein, good and valid title to the Shares, free and clear of all liens, encumbrances, equities or claims, shall be transferred to each of the several Underwriters and International Underwriters who purchase the Shares in good faith and without notice of any lien, encumbrance, equity or claim or any other adverse claim within the meaning of the Uniform Commercial Code of the State of New York;
(v) The Company is not an "investment company" as such term is defined in the Investment Company Act; In addition, such counsel shall state that on the basis of the participation of such counsel in conferences at which the contents of the Registration Statement and the Final Prospectus and related matters were discussed, but without independent verification by such counsel of the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Final Prospectus, any amendment or supplement thereto or any documents incorporated by reference in the Final Prospectus or any amendment or supplement thereto, that they have no knowledge that (other than the financial statements, schedules and other financial or statistical data which are or should be contained therein, as to which such counsel need express no statement):
(1) The documents incorporated by reference in the Final Prospectus or any further amendment or supplement thereto made by the Company prior to such Time of Delivery, when they became effective or were filed with the Commission, as the case may be, (A) did not comply as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and (B) contained in the case of a registration statement which became effective under the Act, an untrue statement of a material fact, or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, in the case of other documents which were filed under the Exchange Act with the Commission, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading;
(A) The Registration Statement and the Final Prospectus and any further amendment and supplements thereto made by the Company prior to such Time of Delivery did not comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; (B) as of their respective effective dates, the Registration Statement or any further amendment thereto made by the Company prior to such Time of Delivery contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Final Prospectus or any further amendment or supplement thereto made by the Company prior to such Time of Delivery contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading or that, as of such Time of Delivery, the Final Prospectus or any further amendment or supplement thereto made by the Company prior to such Time of Delivery contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; and (C) any amendment to the Registration Statement required to be filed with the Commission or of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Final Prospectus or required to be described in the Registration Statement or the Final Prospectus which are not filed or incorporated by reference or described as required.
(c) The Company shall have furnished to the Underwriters the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP▇, counsel Esq., General Counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representativessuch Time of Delivery, to the effect that:
(i) To the knowledge of such counsel, the Company has all necessary consents, authorizations, approvals, orders, certificates and permits of and from, and declarations and filings with, all federal, state, local and other governmental authorities, to own, lease, license, and use its properties and assets and to conduct its business in the manner described in the Final Prospectus (except for such consents, authorizations, approvals, orders, licenses, certificates, permits, declarations and filings, which the failure to have obtained, individually or in the aggregate, does not and can reasonably be expected in the future not to have a material adverse effect on the general affairs, business, financial position, shareholders' equity or results of operations of the Company and its subsidiaries, taken as a whole);
(ii) To the knowledge of such counsel, HAL Antillen N.V. ("HAL") has all necessary consents, authorizations, approvals, orders, certificates and permits of and from, and declarations and filings with, all federal, state, local, and other governmental authorities, to own, lease, license, and use its properties and assets and to conduct its business in the manner described in the Final Prospectus (except for such consents, authorizations, approvals, orders, licenses, certificates, permits, declarations and filings, which the failure to have obtained, individually or in the aggregate, does not, and can reasonably be expected in the future not to, have a material adverse effect on the general affairs, business, financial position, shareholders' equity or results of operations of the Company and its subsidiaries, taken as a whole);
(iii) Each of the Subsidiaries has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business which requires such qualification (except where the failure to be so qualified or in good standing does not, and can reasonably be expected in the future not to, have a material adverse effect upon the general affairs, business, financial position, shareholders' equity or results of operations of the Company and its subsidiaries, taken as a whole);
(iv) To the knowledge of such counsel, except as set forth in Schedule III to this Agreement, all of the issued shares of capital stock of each Subsidiary are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, security interests or claims;
(v) To the knowledge of such counsel, and other than as set forth in the Final Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its Subsidiaries is a party or of which any property of the Company or any of its Subsidiaries is the subject which, could reasonably be expected to individually or in the aggregate have a material adverse effect on the general affairs, business, financial position, shareholders' equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to the knowledge of such counsel, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) To the knowledge of such counsel, the compliance by the Company with all of the provisions this Agreement and the International Underwriting Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries is bound or to which any of the property or assets of the Company or any of the Subsidiaries is subject, nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or, to the knowledge of such counsel, any statute or any order, rule or regulation binding on the Company or any of the Subsidiaries or any of their properties;
(vii) To the knowledge of such counsel, the Company is not (A) in violation of, or in default with respect to, any law, rule, regulation, order, judgment or decree, except as may be properly described in the Final Prospectus or such as in the aggregate do not now have, and can reasonably be expected in the future not to have, a material adverse effect on the general affairs, business, financial position, shareholders' equity or results of operations of the Company and the Subsidiaries, taken as a whole; nor is the Company required to take any action in order to avoid any such violation or default; (B) in violation or breach of, or in default with respect to, complying with any material provision of any contract, agreement, instrument, lease, license, arrangement or understanding which is material to the Company and its Subsidiaries, taken as a whole; or (C) in violation or breach of, or in default with respect to, any term of its certificate of incorporation (or other charter document) or by-laws;
(viii) The Company, directly or indirectly, holds good and marketable title to each of the vessels listed on Schedule IV hereto, subject only to the liens disclosed on Schedule IV and maritime liens in the ordinary course of business;
(d) The Company shall have furnished to the Underwriters the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ y ▇▇▇▇▇▇, Panamanian counsel for the Company, ATX Technologies and ATX Europe GmbH dated such Time of Delivery, to the effect that:
(“ATX Europe”i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedRepublic of Panama, with full corporate power and authority (corporate and other) to own or own, lease, as the case may be, license and to operate use its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) This Agreement and the International Underwriting Agreement have been duly authorized by the Company;
(iii) No consent, approval, authorization, order, registration or qualification of or with any Panamanian court or governmental agency or body is required for the sale of the Shares, or the consummation by the Company of the transactions contemplated by this Agreement and the International Underwriting Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters and the International Underwriters;
(iv) The Company has an authorized capitalization as set forth or incorporated by reference in the Final Prospectus, and all of the outstanding issued shares of capital stock of ATX Technologies and ATX Europe the Company including the Shares being delivered at such Time of Delivery have been duly and validly authorized and issued and are fully paid and nonassessable, non-assessable; and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to
(v) To the knowledge of such counsel, after due inquirythe Company is not in violation of, or in default with respect to, any other security interestlaw, claimrule, lien regulation, order, judgment or encumbrance;
(iii) the Company’s authorized capitalization is decree, except as set forth may be properly described in the Prospectus; Final Prospectus or such as in the capital stock aggregate do not now have, and can reasonably be expected in the future not to have, a material adverse effect on the general affairs, business, financial position, shareholders' equity or results of operations of the Company and the Subsidiaries, taken as a whole.
(vi) The Stock conforms in all material respects to the description thereof contained of the Stock in the Final Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;.
(vii) the Company is not and, after giving effect Good and valid title to the offering Shares, free and sale clear of all liens, encumbrances, equities or claims, has been transferred to each of the Securities and several Underwriters or International Underwriters, as the application of the proceeds thereof as described in the Prospectus, will not case may be, an “investment company” as defined who purchase the Shares in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order good faith and without notice of any court such lien, encumbrance, equity or governmental agency claim or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Dateadverse claim.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate the opinion of the Company▇▇▇▇▇▇▇▇ Chance, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Companycounsel to HAL, dated the Closing Date, to the effect that the signers such Time of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the RepresentativesDelivery, to the effect that:
(i) this Agreement HAL is a "naamloze vennootschap" (company with limited liability) duly organized and validly existing as a corporation in good standing under the Custody Agreement and Power laws of Attorney have been duly authorizedthe jurisdiction of its incorporation, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right with power and authority (corporate and other) to sellown, transfer lease, license and deliver use its properties and conduct its business as described in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;Final Prospectus; and
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 All of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided hereinissued shares of capital stock of HAL have been duly and validly authorized and issued, and that has had such Securities credited are fully paid.
(f) The Company shall have furnished to the securities account or accounts Underwriters the opinions of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliabllocal
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters Underwriters, as to the Shares to be delivered at the Time of Delivery, to purchase the Underwritten Securities and the Option Securities, as the case may be, Shares shall be subject to the accuracy of the representations and warranties on the part of the Company and of the Selling Stockholder Stockholders contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofTime of Delivery, to the accuracy of the statements of the Company and of the Selling Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and by each of the Selling Stockholder Stockholders of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM p.m. New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM p.m. New York City time on such date or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM p.m. New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be shall 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 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 Underwriters the opinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("▇▇▇▇ ▇▇▇▇▇"), counsel for the Company, dated the Time of Delivery, to the effect that:
(i) This Agreement has been duly executed and caused delivered by the Company;
(ii) No consent, approval, authorization, order, registration or qualification of or with any New York or federal court or governmental agency or body is required for the sale of the Shares or the consummation by the Company of the transactions contemplated by the Final Prospectus or this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters;
(iii) The first sentence of the first paragraph and the first and second sentences of the second paragraph of the section of the Final Prospectus relating to the Shares captioned "Risk Factors -- Income Taxes" contain a fair and accurate general description of the U.S. Federal tax provisions discussed therein;
(iv) Assuming that New York law is applicable, upon delivery of the Shares pursuant to this Agreement and payment therefor as contemplated herein, good and valid title to the Shares, free and clear of all liens, encumbrances, equities or claims, shall be transferred to each of the several Underwriters who purchase the Shares in good faith and without notice of any lien, encumbrance, equity or claim or any other adverse claim within the meaning of the Uniform Commercial Code of the State of New York;
(v) The Company is not an "investment company" as such term is defined in the Investment Company Act; In addition, such counsel shall state that on the basis of the participation of such counsel in conferences at which the contents of the Registration Statement and the Final Prospectus and related matters were discussed, but without independent verification by such counsel of the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Final Prospectus, any amendment or supplement thereto or any documents incorporated by reference in the Final Prospectus or any amendment or supplement thereto, that they have no knowledge that (other than the financial statements, schedules and other financial or statistical data which are or should be contained therein, as to which such counsel need express no statement):
(1) The documents incorporated by reference in the Final Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery, when they became effective or were filed with the Commission, as the case may be, (A) did not comply as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and (B) contained in the case of a registration statement which became effective under the Act, an untrue statement of a material fact, or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, in the case of other documents which were filed under the Exchange Act with the Commission, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading;
(A) The Registration Statement and the Final Prospectus and any further amendment and supplements thereto made by the Company prior to the Time of Delivery did not comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; (B) as of their respective effective dates, the Registration Statement or any further amendment thereto made by the Company prior to the Time of Delivery contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Final Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading or that, as of the Time of Delivery, the Final Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; and (C) any amendment to the Registration Statement required to be filed with the Commission or of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Final Prospectus or required to be described in the Registration Statement or the Final Prospectus which are not filed or incorporated by reference or described as required.
(c) The Company shall have furnished to the Underwriters the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP▇, counsel Esq., General Counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the RepresentativesTime of Delivery, to the effect that:
(i) To the knowledge of such counsel, the Company has all necessary consents, authorizations, approvals, orders, certificates and permits of and from, and declarations and filings with, all federal, state, local and other governmental authorities, to own, lease, license, and use its properties and assets and to conduct its business in the manner described in the Final Prospectus (except for such consents, authorizations, approvals, orders, licenses, certificates, permits, declarations and filings, which the failure to have obtained, individually or in the aggregate, does not and can reasonably be expected in the future not to have a material adverse effect on the general affairs, business, financial position, shareholders' equity or results of operations of the Company and its subsidiaries, taken as a whole);
(ii) To the knowledge of such counsel, HAL Antillen N.V. ("HAL") has all necessary consents, authorizations, approvals, orders, certificates and permits of and from, and declarations and filings with, all federal, state, local, and other governmental authorities, to own, lease, license, and use its properties and assets and to conduct its business in the manner described in the Final Prospectus (except for such consents, authorizations, approvals, orders, licenses, certificates, permits, declarations and filings, which the failure to have obtained, individually or in the aggregate, does not, and can reasonably be expected in the future not to, have a material adverse effect on the general affairs, business, financial position, shareholders' equity or results of operations of the Company and its subsidiaries, taken as a whole);
(iii) Each of the Subsidiaries has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business which requires such qualification (except where the failure to be so qualified or in good standing does not, and can reasonably be expected in the future not to, have a material adverse effect upon the general affairs, business, financial position, shareholders' equity or results of operations of the Company and its subsidiaries, taken as a whole);
(iv) To the knowledge of such counsel, except as set forth in Schedule III to this Agreement, all of the issued shares of capital stock of each Subsidiary are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, security interests or claims;
(v) To the knowledge of such counsel, and other than as set forth in the Final Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its Subsidiaries is a party or of which any property of the Company or any of its Subsidiaries is the subject which, could reasonably be expected to individually or in the aggregate have a material adverse effect on the general affairs, business, financial position, shareholders' equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to the knowledge of such counsel, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) To the knowledge of such counsel, the compliance by the Company with all of the provisions this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries is bound or to which any of the property or assets of the Company or any of the Subsidiaries is subject, nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or, to the knowledge of such counsel, any statute or any order, rule or regulation binding on the Company or any of the Subsidiaries or any of their properties;
(vii) To the knowledge of such counsel, the Company is not (A) in violation of, or in default with respect to, any law, rule, regulation, order, judgment or decree, except as may be properly described in the Final Prospectus or such as in the aggregate do not now have, and can reasonably be expected in the future not to have, a material adverse effect on the general affairs, business, financial position, shareholders' equity or results of operations of the Company and the Subsidiaries, taken as a whole; nor is the Company required to take any action in order to avoid any such violation or default; (B) in violation or breach of, or in default with respect to, complying with any material provision of any contract, agreement, instrument, lease, license, arrangement or understanding which is material to the Company and its Subsidiaries, taken as a whole; or (C) in violation or breach of, or in default with respect to, any term of its certificate of incorporation (or other charter document) or by-laws;
(viii) The Company, directly or indirectly, holds good and marketable title to each of the vessels listed on Schedule IV hereto, subject only to the liens disclosed on Schedule IV and maritime liens in the ordinary course of business;
(d) The Company shall have furnished to the Underwriters the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ y ▇▇▇▇▇▇, Panamanian counsel for the Company, ATX Technologies and ATX Europe GmbH dated the Time of Delivery, to the effect that:
(“ATX Europe”i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedRepublic of Panama, with full corporate power and authority (corporate and other) to own or own, lease, as the case may be, license and to operate use its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) This Agreement has been duly authorized by the Company;
(iii) No consent, approval, authorization, order, registration or qualification of or with any Panamanian court or governmental agency or body is required for the sale of the Shares, or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters;
(iv) The Company has an authorized capitalization as set forth or incorporated by reference in the Final Prospectus, and all of the outstanding issued shares of capital stock of ATX Technologies and ATX Europe the Company including the Shares being delivered at the Time of Delivery have been duly and validly authorized and issued and are fully paid and nonassessable, non-assessable; and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to
(v) To the knowledge of such counsel, after due inquirythe Company is not in violation of, or in default with respect to, any other security interestlaw, claimrule, lien regulation, order, judgment or encumbrance;
(iii) the Company’s authorized capitalization is decree, except as set forth may be properly described in the Prospectus; Final Prospectus or such as in the capital stock aggregate do not now have, and can reasonably be expected in the future not to have, a material adverse effect on the general affairs, business, financial position, shareholders' equity or results of operations of the Company and the Subsidiaries, taken as a whole.
(vi) The Stock conforms in all material respects to the description thereof contained of the Stock in the Final Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;.
(vii) the Company is not and, after giving effect Good and valid title to the offering Shares, free and sale clear of all liens, encumbrances, equities or claims, has been transferred to each of the Securities several Underwriters who purchase the Shares in good faith and the application without notice of the proceeds thereof as described in the Prospectusany such lien, will not beencumbrance, an “investment company” as defined in the Investment Company Act of 1940, as amended;equity or claim or any other adverse claim.
(viiie) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as The Company shall have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable furnished to the Company or Representatives the Subsidiaries opinion of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ Chance, counsel to HAL, dated the Time of Delivery, to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;effect that:
(xiiii) the Merger was HAL is a "naamloze vennootschap" (company with limited liability) duly authorized by the Company, the Merging Entity organized and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated validly existing as a corporation in accordance with good standing under the laws of the State jurisdiction of Texas its incorporation, with power and authority (corporate and other) to own, lease, license and use its properties and conduct its business as described in the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amendedFinal Prospectus; and
(xviii) the issuance All of the Common Stock issued shares of capital stock of HAL have been duly and validly authorized and issued, and are fully paid. Each such opinion described in connection with 6(b), (c), (d) and (e) above shall be in form and substance reasonably satisfactory to the Merger was exempt from the registration provisions of the ActRepresentatives. In rendering such opinionopinions described in 6(b), (c), (d) and (e) above, each such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United Statesjurisdiction in which such counsel practices, to the extent they deem such counsel deems proper and to the extent specified in such opinion, upon the an opinion of other counsel of good standing whom they believe to be reliable or opinions (in form and who are substance reasonably satisfactory to counsel for the Underwriters and Underwriters) of other counsel, reasonably acceptable to counsel for the Underwriters, familiar with the applicable laws; (B) as to matters of fact, to the extent they deem such counsel deems proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include or of any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus Subsidiaries; and (together with any supplement theretoC) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinioncounsel deems proper, upon the opinion written statements or certificates of other counsel officers of good standing whom they believe to be reliabldepartments of various jurisdiction
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Underwriters' Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and any settlement date pursuant to Section 3 hereofas of the Closing Date, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will shall have become effective not later than (i) 6:00 PM P.M. New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM P.M. New York City time on such date or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM P.M. New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be Prospectus shall 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 Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇furnished to the Representatives:
(i) an opinion of Weil, Gotshal & Manges LLP, counsel to the Company, dated the Closing Date, to the ef▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect thathat:
(iA) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and Company is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedState of Delaware, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualificationthe State of New York;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iiiB) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms Securities conform in all material respects to the description thereof contained in the Prospectus;
(C) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws affecting creditors' rights generally from time to time in effect, and subject, as to enforceability, to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and the outstanding shares of Common Stock Securities have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; in the Securities being sold hereunder case of the Underwriters' Securities, or by the Company are duly listedpurchasers thereof pursuant to Delayed Delivery Contracts, and admitted and authorized for tradingin the case of any Contract Securities, subject to official notice of issuance and evidence of satisfactory distributionwill constitute legal, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock binding obligations of the Company are not entitled to preemptive the benefits of the Indenture (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, and other similar laws affecting creditors' rights generally from time to time in effect, and subject, as to enforceability, to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstandingat law);
(ivD) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit theretoexhibit, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(vE) the Registration Statement has and any amendments thereto have become effective under the Act; any required filing of the Prospectus, Prospectus and any supplements thereto, supplement thereto pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement Statement, as amended, has been issued, and no proceedings for that purpose have been instituted or threatened and are pending or contemplated under the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion)Act;
(viF) this Agreement has and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viiiG) no consent, approval, authorization, approval or other action by, and no notice to, consent of, order of, or filing with with, any New York, Delaware corporate or order of any court Federal governmental authority or governmental agency or regulatory body is required in connection with for the consummation of the transactions contemplated hereinherein or in any Delayed Delivery Contracts, except such as have been obtained under the Act, such filings as may be required under the Exchange Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ixH) neither none of the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor contemplated or the fulfillment of the terms hereof, nor the consummation hereof or of the Merger any Delayed Delivery Contracts will conflict with, result in a breach or violation of, or imposition of any lienconstitute a default under, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan material indenture or other material agreement or other agreement, obligation, condition, covenant or instrument known to such counsel and to which the Company or the Subsidiaries any of its subsidiaries is a party or bound or to which its or their property is subjectbound, or (iii) any statute, law, rule, regulation, judgment, order decree or decree regulation known to such counsel to be applicable to the Company or the Subsidiaries any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, body or arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amendedsubsidiaries; and
(xviI) the issuance Registration Statement and the Prospectus (except for the financial statements and related notes thereto, the financial statement schedules and the other financial and accounting data included or incorporated by reference in the Registration Statement or the Prospectus as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Common Stock in connection with Act and the Merger was exempt from the registration provisions of the Actrules and regulations thereunder. In rendering such opinion, such counsel Weil, Gotshal & Manges LLP may rely (A) as to matters involving the application of laws of la▇▇ ▇▇ any jurisdiction other than the State of Texas and the State of Delaware New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters Underwriters; and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References .
(ii) a letter of Weil, Gotshal & Manges LLP dated the Closing Date to the Prospectus effect that, having particip▇▇▇▇ ▇n conferences with certain officers of, and with the accountants for, the Company and having made certain inquiries and investigations in this paragraph (b) shall also include any supplements thereto connection with the preparation of the Registration Statement and the Prospectus, such counsel has no reason to believe that the Registration Statement at the Effective Date contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus on the Closing DateDate includes any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (in each case except for the financial statements and the notes thereto and other accounting or financial data included therein, as to which such counsel need express no view).
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.Fried, Frank, Harris, Shriver & Jacobson, counsel for the Underwriters, such opinion or opinionsopi▇▇▇▇▇, dated the Closing Date and addressed to the Representativesdat▇▇ ▇▇▇ ▇losing Date, with respect to the issuance and sale of the Securities, the Indenture, any Delayed Delivery Contracts, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer (or Vice President and Treasurer) of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement, the Prospectus, any supplements supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date 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 Statement, as amended, 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 Prospectus (exclusive of any supplement thereto)Prospectus, there has been no material adverse effect on change in the condition (financial or otherwiseother), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a wholesubsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto)Prospectus.
(e) The Selling Stockholder At the Closing Date, KPMG LLP shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opiniona letter or letters (which may refer to a letter previously delivered to one or more of the Representatives), dated as of the Closing Date Date, in form and addressed substance reasonably satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder, that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) this Agreement in their opinion the audited financial statements and schedules thereto included or incorporated in the Registration Statement and the Custody Agreement Prospectus and Power reported on by them (it being understood that KPMG LLP has not reported on any financial statements for periods prior to the fiscal year ended June 30, 2002) comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, Exchange Act and the Selling Stockholder has full legal right published rules and authority regulations thereunder with respect to sell, transfer financial statements and deliver financial statement schedules included or incorporated in annual reports on Form 10-K under the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderExchange Act;
(ii) assuming that each Underwriter acquires its interest on the basis of a reading of the unaudited financial statements included or incorporated in the Securities it has purchased from Registration Statement and the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 Prospectus and of the UCC), each Underwriter that has purchased such Securities delivered on latest unaudited financial statements made available by the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts 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 such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter significance with respect to the comments set forth in such Securities;letter; a reading of the minutes of the meetings of the stockholders, directors and executive committees of the Company and the subsidiaries since the date of the latest audited balance sheet, through a specified date not more than five business days prior to the date of the letter; 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 the date of the most recent financial statements incorporated in the Registration Statement and the Prospectus, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated in the Registration Statement and the Prospectus do not comply as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect to financial statements included or incorporated in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not stated on a basis substantially consistent with that of the audited financial statements included or incorporated in the Registration Statement and the Prospectus; or
(2) with respect to the period subsequent to the date of the most recent financial statements incorporated in the Registration Statement and the Prospectus, there were, at a specified date not more than five business days prior to the date of the letter, any increases in long-term debt of the Company and its subsidiaries or decreases in the capital stock of the Company or decreases in the stockholders' equity of the Company and its subsidiaries as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated in the Registration Statement and the Prospectus, except in all instances for increases 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; and
(iii) no consent, approval, authorization or order they have performed certain other procedures as a result of any court or governmental agency or body is required for which they determined that the consummation by the Selling Stockholder information described in a schedule to be delivered on behalf of the transactions contemplated hereinUnderwriters of an accounting, except such financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general ledger of the Company) set forth in the Registration Statement, as may amended, the Prospectus, as amended or supplemented, and in Exhibit 12 to the Registration Statement (including selected accounting, financial or statistical information included or incorporated in the Company's Annual Report on Form 10-K incorporated in the Prospectus or any of the Company's Quarterly Reports on Form l0-Q incorporated therein), agrees with the general ledger of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplements thereto at the date of the letter.
(f) Subsequent to the respective dates of which information is given in the Registration Statement and the Prospectus, there shall not have been obtained under (i) any change or decrease specified in the Act letter or letters referred to in paragraph (e) of this Section 5 or (ii) any change, or any development involving a prospective change, in or affecting the business or properties of the Company and such its subsidiaries the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as may be required under the blue sky laws of any jurisdiction in connection to make it impractical or inadvisable to proceed with the purchase and distribution public offering or the delivery of the Securities as contemplated by the Registration Statement and the Prospectus.
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) The Company shall have accepted Delayed Delivery Contracts in any case where sales of Contract Securities arranged by the Underwriters and such other approvals (specified in such opinion) as have been obtained; andapproved by the Company.
(ivi) neither Subsequent to the sale Execution Time, there shall not have been any decrease in the rating of any of the Securities being sold Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Selling Stockholder nor the consummation Act) or any notice given of any other intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliabl
Appears in 1 contract
Sources: Underwriting Agreement (Estee Lauder Companies Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder 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 Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the The Prospectus, or and any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be has 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 DLA ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ US LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedState of Washington, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the ProspectusDisclosure Package and the Prospectus under the caption “Description of Capital Stock”; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive rights under Washington law or the Company’s articles of incorporation or, to such counsel’s knowledge, similar contractual rights, or other rights to subscribe for the Securities; and, except as set forth in the Prospectusto such counsel’s knowledge, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstandingoutstanding other than those described in the Disclosure Package and the Prospectus;
(iviii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Preliminary Prospectus and the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Preliminary Prospectus and the Prospectus under the headings heading “Description of Capital Stock,” Risk Factors - Risks Related to this Offering - Anti-takeover defenses that we have in place could prevent or frustrate attempts to change our direction or management”, “Business - Product Development, Manufacturing and Supplier Relationships”, “Management - Employment Agreements”, “Management - Benefit Plans”, “Certain Relationships and Related Party Transactions,” ”, “Shares Eligible for Future Sale” and “UnderwritingMaterial U.S. Federal Income and Estate Tax Consequences to Non-U.S. Holders”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(viv) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, issued and no proceedings for that purpose have been instituted or threatened threatened;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(vii) no consent, approval, authorization, filing with or order of any court or governmental agency or body under U.S. federal, New York state or Washington state law that in such counsel’s experience is normally applicable in relation to transactions of the type contemplated by this Agreement required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Preliminary Prospectus and the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(viii) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to, (i) the articles of incorporation or by-laws 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 bound or to which its property is subject that is in an exhibit to, or is described in, the Registration Statement or is otherwise known to such counsel, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its properties; and
(ix) except as described in the Disclosure Package and the Prospectus, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement. Such counsel shall also state that, in the course of acting as counsel for the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus, such counsel has participated in conferences with officers and other representatives of the Company, representatives of and counsel for the Underwriters and representatives of the registered independent public accounting firm of the Company, during which the contents of the Registration Statement, the Disclosure Package and the Prospectus were discussed; while the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process are such that 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 or the Prospectus (except to the extent expressly set forth in paragraphs (ii) and (iii) above), subject to the foregoing and based on such participation and discussions:
(a) the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and ;
(b) no facts have come to such counsel’s attention that have caused such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvic) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as has no reason to matters involving believe that the application documents specified in a schedule to such counsel’s letter, consisting of laws of any jurisdiction other than those included in the State of Texas Disclosure Package and the State of Delaware or the Federal laws of the United States, price to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securitiespublic, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, number of Underwritten Securities and the Company and number of Option Securities on the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose cover page of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, when taken together as a whole, whether contained any untrue statement of a material fact or not arising from transactions omitted to state any material fact necessary in order to make the statements therein, in the ordinary course light of businesscircumstances under which they were made, except as set forth in or contemplated in the Prospectus not misleading (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas financial statements and the State of Delaware or the Federal laws of the United Statesother financial and statistical information contained therein, as to the extent they deem proper and specified in which such counsel need express no opinion, upon the opinion of other counsel of good standing whom they believe to be reliabl).
Appears in 1 contract
Sources: Underwriting Agreement (Northstar Neuroscience, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder 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 Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP▇▇▇▇, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies Company and ATX Europe GmbH its significant subsidiaries as defined by Rule 1-02 of Regulation S-X (“ATX Europe”the "Significant Subsidiaries") has been duly incorporated and is validly existing as a corporation or limited liability company in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power power, or, in the case of DGS, limited liability company power, and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation or limited liability company and is in good standing under the laws of each jurisdiction which requires such qualificationlisted on Schedule II attached hereto;
(ii) all the outstanding shares of capital stock of ATX Technologies the Company and ATX Europe DigitalNet, Inc. have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth ; all outstanding membership interest of DGS were issued in conformity with the Prospectus, Delaware Limited Liability Company Act; and all outstanding shares of capital stock or membership interests of ATX Technologies and ATX Europe each subsidiary listed on Schedule III are owned of record by the Company either directly or through wholly its wholly-owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrancesubsidiary;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; Prospectus under the outstanding shares caption "Description of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessableCapital Stock"; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National MarketNew York Stock Exchange; the certificates for the Securities Securities, assuming they are in valid the form filed with the Commission, are in due and sufficient formproper form under the Delaware General Corporation Law; and the holders of outstanding shares of capital stock of the Company are not entitled to statutory preemptive or or, to such counsel's knowledge, other similar contractual rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counselcounsel and other than as set forth in the Prospectus, (a) there is are no pending or threatened action, suit or proceeding by or before any court legal or governmental agency, authority or body or any arbitrator involving proceedings pending to which the Company or any of the Subsidiaries its subsidiaries is a party or its or their of which any property of a character the Company or any of its subsidiaries is the subject which are required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectuspursuant to Item 103 of Regulation S-K, and (b) no such proceedings are threatened or contemplated against the Company or any of its subsidiaries; and, to the knowledge of such counsel, there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stockheading "Government Contracting and Regulatory Process,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case " insofar as such statements summarize summarize, in general terms, the legal matters, agreements, documents or proceedings matters discussed therein, are accurate and are, in all material respects, fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, issued and no proceedings for that purpose have been instituted or threatened and threatened;
(vi) the Registration Statement and the Prospectus (other than the financial statements statements, including the notes and schedules thereto, and other financial and statistical information contained thereinderived therefrom, as to which such counsel need express no opinion) comply as appeared on their face to form be responsive in all material respects with to the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vivii) this Agreement has been duly authorized, executed and delivered by the Company;
(viiviii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viiiix) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act or the Securities Exchange Act of 1934, as amended, or any order, rule or regulation thereunder, and such as may be required by the NASD or under the blue sky state securities laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;Prospectus; and
(ixx) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the its Significant Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Significant Subsidiaries, (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 or the Subsidiaries its subsidiaries is a party or bound or to which it or its or their property is subjectsubject that has been filed as an exhibit to the Registration Statement, PROVIDED, HOWEVER, that such counsel need express no opinion with respect to any violation, conflict, breach or default that arises under or is based upon any covenant of a financial or numerical nature or which requires arithmetic computation, (iii) any statute, law, rule, regulationregulation of any governmental agency or authority of the United States or the State of New York or the Delaware General Corporation Law or the Delaware Limited Liability Company Act (except federal and state securities laws) or (iv) to the knowledge of such counsel, any judgment, order or decree applicable to the Company or the Subsidiaries its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries its subsidiaries or any of its or their properties;
. In addition, such counsel shall state that, in the course of the preparation by the Company of the Registration Statement and the Prospectus, they have participated in conferences with certain of the officers and representatives of, and the independent public accountants for, the Company, at which the Registration Statement and the Prospectus were discussed. Such counsel shall also state that between the date of effectiveness of the Registration Statement and the time of delivery of this letter, they have held additional conferences with certain of the officers and representatives of, and the independent public accountants for, the Company, at which the contents of the Prospectus were discussed to a limited extent. Such counsel shall state that given the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process, (x) except as expressly set forth in their opinion) they are not passing upon or contemplated assuming any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus (exclusive of any supplement thereto), and have made no holders of securities independent check or verification thereof. Such counsel shall also state that subject to the foregoing and on the basis of the Company have rights to information gained in the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all performance of the outstanding shares of ATX Technologies’ Series Aservices referred to above, Series Bincluding information obtained from officers and other representatives of, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by independent public accountants for, the Company, no facts have come to such counsel's attention that have caused them to believe that the Merging Entity Registration Statement and ATX Technologies;
(xiv) the Merger is legalProspectus included therein, as of its effective and valid and was consummated date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in accordance with order to make the laws statements therein not misleading or that the Prospectus, as of its date, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the State circumstances under which they were made, not misleading. Also, such counsel shall state, subject to the foregoing, no facts have come to their attention in the course of Texas and proceedings described in the State second sentence of ;
(xv) this paragraph that cause them to believe that the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) Prospectus, as of the Internal Revenue Code date and time of 1986delivery of such letter, as amended; and
(xvi) contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the issuance statements therein, in light of the Common Stock circumstances in connection which they were made, not misleading. Such counsel shall also state that in each case, however, they expresses no view or belief with the Merger was exempt respect to financial statements, notes or schedules thereto or other financial or statistical data included in or omitted from the registration provisions of the ActRegistration Statement or Prospectus. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Cravath, Swaine & ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiariessubsidiaries, 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 Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder Company shall have requested and caused , counsel for the Selling Stockholder, Ernst & Young LLP to have furnished to the Representatives their opinionletters, at the Execution Time and at the Closing Date, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives, to confirming (i) that they are independent accountants within the meaning of Rule 101 of the American Institute of Certified Public Accountants Code of Professional Conduct and its interpretations and rulings and (ii) that they have performed a review of the unaudited interim financial information of the Company for the nine-month period ended September 30, 2002 in accordance with Statement on Auditing Standards No. 100 ("SAS 100"), and the nine-month period ended September 30, 2003, in accordance with SAS 100 and a review of the unaudited interim financial information of DGS for the nine-month period ended September 30, 2002 in accordance with SAS 100, and stating in effect that:
(i) this Agreement in their opinion the audited financial statements included in the Registration Statement and the Custody Agreement Prospectus and Power reported on by them comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed the Act and delivered the related rules and regulations adopted by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderCommission;
(ii) assuming that each Underwriter acquires on the basis of a reading of the latest unaudited financial statements made available by the Company and its interest subsidiaries; their limited review, in accordance with standards established under SAS 100, of DGS' and the Company's unaudited interim financial information for the nine-month period ended September 30, 2002 and in accordance with standards established under SAS 100, of the Company's unaudited interim financial information for the nine-month period ended September 30, 2003, included in the Securities it has purchased from Registration Statement and the Selling Stockholder without notice Prospectus, carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter significance with respect to the comments set forth in such Securitiesletter; a reading of the minutes of the meetings of the stockholders, directors and audit and compensation committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to December 31, 2002, 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 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;
(iii2) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable respect to the Selling Stockholder or period subsequent to September 30, 2003, there were any of its subsidiaries of any courtchanges, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other at a specified date not more than the State of Texas and the State of Delaware or the Federal laws of the United States, five days prior to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablda
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Offered Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Selling Stockholder Israel contained herein as of the Execution Time, time of the execution of this Agreement and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy in all material respects of the statements of the Company and the Selling Stockholder Israel made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Israel of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM p.m. New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM p.m. New York City time on such date or (ii) 9:30 AM 12:00 noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM p.m. New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be shall have been filed in the manner and within the time period required by Rule 424(b)) and in accordance with Section 5(a) of this Agreement; and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened; and any request of the Commission for additional information shall have been complied with to the satisfaction of the Representatives.
(b) The Company Israel shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their Underwriters the written opinion, satisfactory to the Representatives, of the Legal Advisor to the Ministry of Finance of the State of Israel (the "Legal Advisor") dated the Closing Date and addressed to the RepresentativesDate, to the effect that:
(i) each the Offered Securities have been duly and validly authorized and executed in accordance with the laws of Israel and, when duly authenticated in accordance with the terms of the CompanyFiscal Agency Agreement and delivered and paid for in accordance with the terms of this Agreement, ATX Technologies the Offered Securities will be valid and ATX Europe GmbH binding obligations of Israel entitled to the benefits of the Fiscal Agency Agreement;
(“ATX Europe”ii) the obligations of Israel under the Fiscal Agency Agreement, this Agreement and the Offered Securities are and will be direct, general and unconditional obligations of Israel, are, under the laws of Israel, subject to civil and commercial substantive and procedural law and to the procedural requirements relating to enforcement and recognition of foreign judgments. The Offered Securities will rank pari passu, without any preference among themselves; the payment obligations of Israel will at all times rank at least equally with all other payment obligations of Israel relating to unsecured and unsubordinated "external indebtedness" (as defined in the Offered Securities) of Israel; the full faith and credit of Israel has been pledged for the due and punctual payment of the principal of and interest on the Offered Securities and for the performance of the obligations of Israel with respect thereto;
(iii) Israel has the power and authority required for the execution and delivery of the Fiscal Agency Agreement, this Agreement, the issuance of the Offered Securities and the performance by Israel of its obligations thereunder and hereunder; and none of the execution or delivery by Israel of this Agreement, the Fiscal Agency Agreement, or the Offered Securities, the performance of its obligations hereunder or thereunder, or the fulfillment by Israel of the terms hereof or thereof requires, under Israeli law, any publication, waiver, consent, filing, registration, authorization or approval;
(iv) the Fiscal Agency Agreement has been duly incorporated authorized, executed and delivered by Israel in accordance with the laws of Israel and is validly existing a valid and binding agreement of Israel;
(v) this Agreement has been duly authorized, executed and delivered by Israel in accordance with the laws of Israel;
(vi) all statements in the Registration Statement and the Prospectus with respect to or involving laws, statutes and regulations of or pertaining to Israel are accurate in all material respects and fairly present the information purported to be shown;
(vii) the provisions of this Agreement and the Offered Securities wherein Israel consents to the jurisdiction of certain courts in the United States and agrees not to assert the defense of immunity, on the grounds of sovereignty or otherwise, are valid and binding; final judgment against Israel in any such suit, action or proceeding brought, in accordance with such provisions, in the courts of Israel or Federal or state courts in the City of New York would be conclusive and binding upon Israel and may be enforced in the courts of Israel, without retrial or reexamination but subject to the procedural requirements relating to enforcement and recognition of foreign judgments;
(viii) under Israeli law in effect as of the date of such opinion, payments made under the Offered Securities will be exempt from Israeli taxation, and there are no transfer, stamp or similar taxes under the laws of Israel payable in connection with the issuance, transfer and sale of the Offered Securities or the execution and delivery of this Agreement or the Fiscal Agency Agreement;
(ix) the choice of New York law to govern the validity, construction and performance of this Agreement, the Offered Securities and the Fiscal Agency Agreement would be upheld by an Israeli court as a corporation valid and effective choice of law under the laws of Israel;
(x) none of the execution or delivery by Israel of this Agreement, the Fiscal Agency Agreement, or the Offered Securities, the performance by Israel of its obligations hereunder or thereunder, or the fulfillment by Israel of the respective terms hereof or thereof, will violate any provision of the laws of Israel or, to the best knowledge of the Legal Advisor, violate any order, rule or regulations of any Israeli Court, regulatory body, or administrative body or governmental body;
(xi) none of the execution or delivery by Israel of this Agreement, the Fiscal Agency Agreement, or the Offered Securities, the performance by Israel of its obligations hereunder or thereunder, or the fulfillment of the respective terms thereof by Israel, will, to the best knowledge of the Legal Advisor after due inquiry, violate, or result in good standing a breach of, the terms of, or cause a default under, any note, note agreement, bank loan, or any other agreement or instrument for money borrowed to which Israel is a party;
(xii) there is no action, suit, or proceeding pending, or to the knowledge of the Legal Advisor, threatened against or affecting Israel, before any court or administrative agency in Israel, challenging the validity or enforceability of this Agreement, the Fiscal Agency Agreement, or the Offered Securities or the transactions contemplated thereby;
(xiii) the Registration Statement, as amended, and the Prospectus, and their filing with the Commission have been duly authorized by and on behalf of Israel and the Registration Statement has been duly executed on behalf of Israel;
(xiv) the Legal Advisor shall further confirm that appropriate officials in the Ministry of Finance have been apprised of the disclosure standards applicable to the offering described in this Agreement and have reviewed the Prospectus. Based on such review, the results of which have been discussed with the Legal Advisor, the Legal Advisor shall confirm that, although the Legal Advisor shall not have made an independent investigation or verification of the correctness and completeness of the information included in the Prospectus, nothing has come to the Legal Advisor's attention that would lead the Legal Advisor to believe that (except as to the financial and statistical data contained therein as to which the Legal Advisor need not express any belief) (a) the Registration Statement and the Prospectus included therein at the time the Registration Statement became effective did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make statements therein not misleading, and (b) the Prospectus does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(xv) the appointment of the Authorized Agent in Section 13 below and any waiver in that section by Israel in respect thereto are legal, valid and binding in accordance with their respective terms under the laws of Israel. In rendering such opinion, the Legal Advisor may rely without independent investigation on the opinion pursuant to paragraph (c) below as to matters of New York and United States Federal law and such opinion shall be subject to any limitations and exceptions contained in the opinion so relied upon. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Underwriters shall have received on and as of the Closing Date an opinion, satisfactory to the Representatives, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special United States counsel to Israel, to the effect that:
(i) the Offered Securities, when duly authorized, executed, authenticated and issued in accordance with the terms of the Fiscal Agency Agreement and delivered and paid for in accordance with the terms of this Agreement, will be valid and binding obligations of Israel entitled to the benefits of the Fiscal Agency Agreement;
(ii) the Fiscal Agency Agreement, when duly authorized, executed and delivered by the parties thereto, shall constitute a valid and legally binding agreement of Israel, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles;
(iii) no consent, approval, authorization, order, registration, clearance, qualification or filing (each, a "Governmental Authorization") of or with any United States Federal or state government, administrative agency, commission or other body is required for the issue and sale of the Offered Securities or the consummation by Israel of the transactions contemplated by this Agreement or the Fiscal Agency Agreement, except such as have been obtained under the Act and such Governmental Authorizations as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Offered Securities by the Underwriters;
(iv) the statements in the Registration Statement and the Prospectus under the captions "Description of the Securities" and "Description of Bonds" insofar as they purport to constitute a summary of certain provisions of the Offered Securities and the Fiscal Agency Agreement provide a fair summary of such provisions;
(v) the statements in the Registration Statement and the Prospectus under the caption "United States Taxation", insofar as they purport to constitute a summary of the material United States Federal income and estate tax consequences of the purchase, ownership and disposition of the Offered Securities, provide a fair summary of such consequences;
(vi) Israel has validly submitted, under the laws of the State of New York and the Federal laws of the United States, to the jurisdiction of the State and Federal courts in the Borough of Manhattan in the City of New York, in any suit, action or proceeding arising out of or based on this Agreement, the Fiscal Agency Agreement or the Offered Securities, except any such suit, action or proceeding instituted by a holder of the Offered Securities (other than an Underwriter instituting such suit, action or proceeding in its capacity as an Underwriter under this Agreement) arising out of or based on United States Federal or state securities laws;
(vii) the documents expressly incorporated by reference in the Prospectus as amended or supplemented (other than the financial statements and related schedules therein, as to which it is chartered such counsel need express no opinion), when they became effective or organized, were filed with full corporate power and authority to own or leasethe Commission, as the case may be, and appear on their face to operate its properties and conduct its business comply as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms form in all material respects to with the description thereof requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder;
(viii) the agreement of Israel contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, the Offered Securities and the Fiscal Agency Agreement that each will be fully paid governed and nonassessable; construed in accordance with the Securities being sold hereunder laws of the State of New York, except with respect to its authorization and execution by the Company are duly listedand on behalf of Israel, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in is valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstandingbinding;
(ivix) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving Offered Securities are exempt from the Company or any provisions of the Subsidiaries or its or their property Trust Indenture Act of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus1939, as amended, under Section 304(a)(6) of said Act, and there is no franchise, contract or other document indenture in respect of a character required to the Offered Securities need be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as requiredqualified under said Act; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;and
(vx) the Registration Statement has become effective under the Act; any required filing Act as of the Prospectusdate and time specified in such opinion, and any supplements theretoand, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, issued and no proceedings for that purpose are pending before or threatened by the Commission. In giving such opinion, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ may (i) assume that the Fiscal Agency Agreement, the Offered Securities and this Agreement have been instituted duly authorized, executed and delivered by the appropriate party or threatened parties thereto and that each such party has adequate power and authority to enter therein and (ii) rely without independent investigation on the opinion delivered pursuant to paragraph (b) above as to matters governed by the laws of Israel and such opinion shall be subject to any limitations and exceptions contained in the opinion delivered pursuant to paragraph (b) above. In addition, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have furnished the Underwriters with a letter, dated the Closing Date, confirming that as United States counsel to Israel, such counsel reviewed the Registration Statement and the Prospectus (other than as then amended or supplemented, participated in discussions with your representatives and those of Israel and its Israeli counsel, and advised Israel as to the financial statements requirements of the Securities Act and other financial the applicable rules and statistical regulations thereunder; on the basis of the information contained thereinthat such counsel gained in the course of the performance of such services, considered in the light of their understanding of the applicable law and the experience they have gained through their practice under the Securities Act, such counsel will confirm to you that, in their opinion, the Registration Statement and the Prospectus as then amended or supplemented, as of the effective date of the Registration Statement, appeared on their face to which such counsel need express no opinion) comply as to form be appropriately responsive in all material respects with to the applicable requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder; and nothing that came to such counsel's attention in the course of the limited procedures described in such letter has caused such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amendedor the Prospectus as then amended or supplemented, the Registration Statement as of such effective date, contained any 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 misleading; and nothing that has come to such counsel's attention in the course of the limited procedures described in such letter has caused such counsel to believe that the Prospectus (as of its then amended or supplemented) at the date and on the Closing Date included or includes hereof contained any untrue statement of a material fact or omitted or omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (misleading. Such counsel may state that the limitations inherent in each casethe independent verification of factual matters and the character of determinations involved in the registration process are such that they do not assume any responsibility for the accuracy, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale completeness or fairness of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablstate
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations obligation of the Underwriters to purchase and pay for the Underwritten Securities and the Option Securities, as the case may be, shall Certificates will be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereofBank herein, to the accuracy of the statements of officers of the Company and the Selling Stockholder Bank made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Bank of its obligations hereunder and to the following additional conditionsconditions precedent:
(ai) On or prior to the date of this Agreement, the Underwriters shall have received a letter, dated the date of this Agreement, of KPMG Peat Marwick and substantially in the form heretofore agreed and otherwise in form and substance agreed to by the Underwriters.
(ii) If the Registration Statement has not become effective prior to the Execution Timedate of this Agreement, unless the Representatives Underwriters agree in writing to a later time, the Registration Statement will shall have become effective not later than (iA) 6:00 PM p.m., New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM 12:00 noon, New York City time time, on such date or (iiB) 9:30 AM 3:00 p.m. on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM 12:00 noon, New York City time time, on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will Prospectus shall 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(iii) Subsequent to the execution and delivery of this Agreement, there shall have not occurred (a) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Bank [or USAA Capital Corporation] which, in the reasonable judgment of the Underwriters materially impairs the investment quality of either Class of Certificates; (b) The Company any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Bank or of [USAA Capital Corporation] on any exchange or in the over-the-counter market by such exchange or over-the-counter market or by the Commission; (c) any banking moratorium declared by Federal, New York or Texas authorities; or (d) any outbreak or material escalation of major hostilities or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriters, the effect of any such outbreak, escalation, calamity or emergency on the United States financial markets makes it impracticable or inadvisable to proceed with completion of the sale of, and any payment for, the Certificates.
(iv) You shall have requested and caused received an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ LLP▇▇▇, counsel for Vice President and Banking Counsel of the CompanyBank, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially to the effect that:
(ia) each of the Company, ATX Technologies and ATX Europe GmbH The Bank (“ATX Europe”1) has been duly incorporated chartered and is validly existing as a corporation in good standing federal savings association under the laws of the jurisdiction in which it is chartered or organizedUnited States, with full corporate (2) has the power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the ProspectusProspectus and (3) had at all relevant times, and is duly qualified now has, the power, authority and legal right to do business as a foreign corporation acquire, own, sell and is in good standing under service the laws of each jurisdiction which requires such qualificationReceivables;
(iib) all The Bank has the outstanding shares power and authority to execute and deliver this Agreement and the Pooling and Servicing Agreement and to consummate the transactions contemplated herein and therein;
(c) No consent, approval, authorization or order of, or filing with, any Texas or federal governmental agency or body or any court is required by the Bank to perform the transactions contemplated by this Agreement or the Pooling and Servicing Agreement except for (1) filing of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth a Uniform Commercial Code financing statement in the ProspectusState of Texas with respect to the transfer of the Receivables to the Trust pursuant to the Pooling and Servicing Agreement and (2) such consents, all outstanding shares approvals, authorizations, orders or filings as may be required under the federal and state securities laws;
(d) None of capital stock of ATX Technologies the execution, delivery and ATX Europe are owned performance by the Company either directly Bank of this Agreement or through wholly owned subsidiaries free the Pooling and clear Servicing Agree- ment, the transfer of the Receivables to the Trust, the assignment of the security interests of the Bank in the Financed Vehicles, the issuance and sale of the Certificates or the consummation of any perfected security interest andother of the transactions contemplated herein or in the Pooling and Servicing Agreement, will conflict with, result in a breach, violation or acceleration of any of the terms of, or constitute a default under, the By-Laws or the Charter of the Bank, as amended, or, to the best of such counsel's knowledge, any rule, order, statute or regulation known to such counsel to be currently applicable to the Bank of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Bank or the terms of any material indenture or other material agreement or instrument known to such counsel to which the Bank is a party or by which it or its properties are bound;
(e) To the best knowledge of such counsel, after due inquiry, there are no actions, proceedings or investigations pending or threatened before any court, administrative agency or other security interest, claim, lien or encumbrance;
tribunal (iii1) asserting the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock invalidity of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid or the Pooling and nonassessable; the Securities being sold hereunder by the Company are duly listedServicing Agreement, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock or either Class of the Company are not entitled Certificates, (2) seeking to preemptive prevent the issuance of the Certificates or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares consummation of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in transactions contemplated by this Agreement, the Registration Statement which is not adequately disclosed in the Prospectus, Pooling and there is no franchise, contract or other document of a character required to be described in the Registration Statement or ProspectusServicing Agreement, or (3) seeking adversely to be filed affect the federal income tax attributes of either Class of Certificates as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “"Prospectus Summary -- Tax Status" and "Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedingsFederal Income Tax Consequences";
(vf) the Registration Statement has become effective under the Act; any required filing of the ProspectusThe Pooling and Servicing Agreement, and any supplements thereto, pursuant to Rule 424(b) has been made in duly authorized, executed and delivered by the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion)Bank;
(vig) this This Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amendedBank; and
(xvih) The statements in the issuance Prospectus under the caption "Certain Legal Aspects of the Common Stock Receivables," to the extent they constitute matters of law or legal conclusions, are correct in connection with the Merger was exempt from the registration provisions of the Actall material respects. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem deemed proper and specified stated in such opinion, upon the opinion of other qualified counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters standing, and (B) as to matters of fact, to the extent they deem properdeemed proper and as stated therein, on certificates of responsible officers of the Company Trust, the Bank and public officials. References to the Prospectus in this paragraph (biv) shall also include any supplements thereto at the Closing Datethereto.
(cv) The Representatives You shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their an opinion, dated the Closing Date and addressed of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, special counsel to the RepresentativesBank, substantially to the effect that:
(ia) this Agreement and the Custody Agreement and Power of Attorney The Certificates have been duly authorizedand validly authorized and, executed when executed, authenticated and issued in accordance with the terms of the Pooling and Servicing Agreement, and delivered to and paid for by the Selling StockholderUnderwriters pursuant to this Agreement, will be duly and validly issued and outstanding and will be entitled to the Custody Agreement is benefits of the Pooling and Servicing Agreement;
(b) Assuming the authorization, execution and delivery thereof by the Trustee with respect to the Pooling and Servicing Agreement, such agreement constitutes the legal, valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 agreement of the UCC)Bank, each Underwriter that has purchased such Securities delivered on enforceable against the Closing Date Bank in accordance with its terms, subject, as to The Depository Trust Company enforcement, to (1) the effect of bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky similar laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder general application relating to or affecting creditors' rights generally or the fulfillment rights of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws creditors of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely federal savings associations; (A2) as to matters involving the application of laws general principles of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablequity (regard-
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Gibs▇▇ ▇▇▇n & ▇rut▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National MarketNew York Stock Exchange; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(vii) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder;
(iii) this Agreement has been duly authorized, executed and delivered by the Company; and
(iv) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an "investment company" as defined in the Investment Company Act of 1940, as amended. Furthermore, following the opinion paragraphs, such counsel has shall state the following: "We have participated in conferences with officers and other representatives of the Company, representatives of the independent auditors of the Company and your representatives and counsel at which the contents of the Registration Statement and Prospectus and related matters were discussed. Because the purpose of our professional engagement was not to establish or confirm factual matters and because the scope of our examination of the affairs of the Company did not permit us to verify the accuracy, completeness of fairness of the statements set forth in the Registration Statement and Prospectus, 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 and Prospectus, except to the extent set forth below in the last sentence of the immediately following paragraph. On the basis of the foregoing, and except for the financial statements and schedules and other financial and statistical data included therein, as to which we express no reason opinion or belief, no facts have come to our attention that lead us to believe that the Registration Statement, on the Effective Date or the date the Registration Statement was last deemed amendedDate, the Registration Statement contained any 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 Prospectus Prospectus, as of its date and on as of the Closing Date included Date, contained or includes contains any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Actmisleading". In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Company shall have furnished to the Representatives the opinion of Jame▇ ▇. ▇▇▇▇▇▇, ▇▇q., general counsel of the Company, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company and the Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to be so qualified or in good standing could not reasonably be expected to have a Material Adverse Effect;
(ii) all the outstanding shares of capital stock of the Company and each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned of record by the Company either directly or through wholly owned Subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance other than such liens or other security interests granted or created in connection with indebtedness of the projects owned by such Subsidiaries;
(iii) the Company's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) there is no pending or, to the knowledge of such counsel, threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Pro- spectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings the "Business-Legal Proceedings," "Business-Regulation" and "Risk Factors - Our business is subject to substantial government regulation and permitting requirements and may be adversely affected by any future inability to comply with existing or future regulations or requirements", insofar as such statements summarize legal matters, agreements, documents, or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act or otherwise and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters (about which such counsel need express no opinion) in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(vi) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or its Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or its Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its Subsidiaries or any of its or their properties, except in the cases of clauses (ii) and (iii) above, such conflict, breach, violation or default which could not reasonably be expected to have a Material Adverse Effect;
(vii) except for (i) San Francisco Thermal, Limited Partnership, (ii) Pittsburgh Thermal, Limited Partnership, and (iii) RSD Power Partners, L.P., (each of which is subject to regulation as a "steam corporation" pursuant to California, Pennsylvania and Delaware law, respectively), none of the Company, its Subsidiaries or its Project Affiliates is subject to regulation as a "steam corporation", "electric utility", "electric utility company", "utility company" or "public utility company" or any similar term by any Federal law, law of the [State of Minnesota] or public utility commission or regulatory body or under any such law other than as public utilities that have been granted market-based rates under the Federal Power Act or any state regulation applicable to "exempt wholesale generators," as defined in Section 32 of PUHCA;
(viii) none of the Company, its Subsidiaries or its Project Affiliates is an "electric utility company", a "public utility company", a "holding company", a "subsidiary company" of any of the foregoing, an "affiliate" of any of the foregoing, or an "affiliate" of a "subsidiary" of a "holding company", each as defined in PUHCA, which is subject to regulation as such an entity or otherwise under PUHCA, nor subject to regulation under PUHCA, except pursuant to Section 9(a)(2) or Section 32 thereof;
(ix) except as set forth in the Prospectus, the Company, its Subsidiaries and its Project Affiliates possess and are in compliance with all approvals, certificates, authorizations, licenses and permits issued by the appropriate state, Federal or foreign regulatory agencies or bodies necessary to conduct their business as described in the Prospectus, except where the failure to possess such approvals, certificates, authorizations, licenses and permits or be in compliance therewith would not be reasonably likely to have a Material Adverse Effect and, to the knowledge of such counsel, none of the Company, its Subsidiaries or its Project Affiliates, has 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 have a Material Adverse Effect; and
(x) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement.
(d) The Representatives shall have received from Skadden, Arps, Slate, Meag▇▇▇ & ▇lom ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiariessubsidiaries, 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 Prospectus (exclusive of any supplement thereto).
(ef) The Selling Stockholder Company shall have requested and caused , counsel for the Selling Stockholder, PricewaterhouseCoopers LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives, to confirming that they are independent accountants within the meaning of the Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for the three-month period ended March 31, 2000, and as at March 31, 2000, in accordance with Statement on Auditing Standards No. 71 and stating in effect that:
(i) this Agreement in their opinion the audited financial statements and financial statement schedules included in the Registration Statement and the Custody Agreement Prospectus and Power reported on by them comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed the Act and delivered the related rules and regulations adopted by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderCommission;
(ii) assuming that each Underwriter acquires its interest in on the Securities it has purchased from the Selling Stockholder without notice basis of any adverse claim (within the meaning of Section 8-105 a reading of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliabllatest unaudited financial statements made available by
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused caused:
(i) ▇▇▇▇▇▇▇ ▇▇▇, Will & ▇▇▇▇▇, special counsel for the Company, to have furnished to the Underwriters their written opinion addressed to the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, substantially in the form of Annex I hereto; and
(ii) ▇▇▇▇▇ Peabody LLP, counsel for the Company, to have furnished to the Representatives Underwriters their opinionwritten opinion addressed to the Underwriters, dated the Closing Date Date, in form and addressed substance reasonably satisfactory to the RepresentativesUnderwriters, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described substantially in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws form of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing DateAnnex II hereto.
(c) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P.& ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus 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 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 Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement and the Final Prospectus. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) The Company shall have requested and caused PricewaterhouseCoopers to have furnished to the Representatives, at the Execution Time, a letter, dated as of the Execution Time, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information relating to Hardy included or incorporated by reference in the Registration Statement and the Final Prospectus. References to the Final 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) 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 paragraphs (e) through (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and 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 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 amendment thereof) and the Final Prospectus (exclusive of any supplement thereto).
(eh) The Selling Stockholder Prior to the Closing Date, the Company shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinionsuch further information, dated certificates and documents as the Closing Date Representatives may reasonably request.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(j) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each person or entity that is identified on Schedule III hereto, addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the effect that:
(i) Representatives and counsel for the Underwriters, this Agreement and all obligations of the Custody Agreement and Power Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of Attorney have been duly authorized, executed and 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 Selling Stockholderoffice of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Custody Agreement is valid and binding on the Selling StockholderUnderwriters, and the Selling Stockholder has full legal right and authority to sellat ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC)▇▇▇ ▇▇▇▇, each Underwriter that has purchased such Securities delivered ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablDate.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 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 General Counsel of the Company, to have furnished furnish to the Representatives their his opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) i. each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) 's Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate operate, its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) . all the outstanding shares of capital stock of ATX Technologies the Company and ATX Europe each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interestinterests, claimclaims, lien liens or encumbranceencumbrances;
(iii) . the Company’s 's authorized capitalization is as set forth in the Prospectus; Final Prospectus under the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstandingheading "Capitalization";
(iv) . to the knowledge of such counsel, without conducting a docket search, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which that is not adequately disclosed in the Final Prospectus, and there is no franchiseexcept in each case for such proceedings that, contract if the subject of an unfavorable decision, ruling or other document of a character required to be described finding would not, singly or in the Registration Statement aggregate, result in a material adverse change in the condition (financial or Prospectusotherwise), prospects, earnings, business or to be filed properties of the Company and its subsidiaries, taken as an exhibit thereto, which is not described or filed as requireda whole; and the statements included in the Final Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements heading "BusinessCLegal Proceedings" fairly summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedingsthe matters therein described;
(v) v. neither the Registration Statement has become effective under the Act; any required filing execution and delivery of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon upon, any property or assets asset of the Company or the Subsidiaries its subsidiaries pursuant to, to (i) the charter or by-laws of the Company Company's subsidiaries, or its Subsidiaries, (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 or the Subsidiaries any of its subsidiaries is a party or bound or to which its or their respective property is subjectsubject which is known to such counsel;
vi. the statements in the Final Prospectus under the captions "Risk Factors B The Heavy Regulation of the Telecommunications Industry May Limit the Development of Our Networks and Affect Our Competitive Position" and "BusinessBRegulation" to the extent that they discuss U.S. federal, state, and local telecommunications statutes and regulations or legal or governmental proceedings of the FCC and state and local governments with respect to telecommunications regulatory matters, fairly summarize the matters referred to therein in all material respects;
vii. neither the execution and delivery of this Agreement by the Company nor the performance by the Company of its obligations under this Agreement will violate the Communications Act or the State Telecommunications Laws; and
viii. to the knowledge of such counsel, (iiiA) the Company and its subsidiaries have in effect all the U.S. federal and state telecommunications regulatory licenses, permits, authorizations, consents, and approvals (hereinafter, "Licenses") required to conduct their respective businesses as presently conducted; (B) all such Licenses have been validly issued and are in full force and effect; (C) no determination has been made by the FCC or any statute, law, rule, regulation, judgment, order or decree applicable to State Regulatory Agency that the Company or the Subsidiaries any subsidiary is in violation of any courtsuch Licenses, regulatory body, administrative agency, governmental body, arbitrator and no proceeding is pending before any such agency in which any such violation has been alleged; and (D) no proceedings by the FCC or other authority having jurisdiction over any State Regulatory Agency to revoke or restrict any such Licenses are pending or threatened. "Validly issued" as used in this paragraph means that the Licenses have been issued through the means of regular agency procedures applied in conformity with the applicable governing statute and prior agency practice and there is no legal basis under the applicable governing statute to conclude that the Company or the Subsidiaries any subsidiary cannot hold one or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities more of the Company Licenses as a matter of law. "Full force and effect" as used in this paragraph means (i) the orders issuing the Licenses have rights to the registration of such securities become effective under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stockgoverning statute, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted Licenses contain no conditions that would have a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition Company's or any subsidiary's operations except for such conditions imposed generally by the agency, (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 iii) all conditions precedent set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney Licenses have been duly authorized, executed and delivered by satisfied where the Selling Stockholder, the Custody Agreement is valid and binding failure to satisfy such conditions would have a material adverse effect on the Selling StockholderCompany's or any subsidiary's ability to conduct their respective businesses as they are presently conducted, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale no stay of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliableffectiveness has been issued.
Appears in 1 contract
Sources: Underwriting Agreement (Metromedia Fiber Network Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Underwriters' Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be shall 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused furnished to the Representatives the opinion of either C. Thom▇▇ ▇▇▇▇▇▇, ▇▇q., a Vice President and the General Counsel of the 11 11 Company or Gerr▇ ▇. ▇▇▇▇▇ LLP▇▇▇▇▇▇, counsel for ▇▇q., an Assistant General Counsel of the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the RepresentativesDate, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedOhio, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualificationqualification wherein it owns or leases material properties or conducts material business;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Final Prospectus; the capital stock of the Company conforms in all material respects Securities conform to the description thereof contained in the Final Prospectus; and, if the outstanding shares Securities are to be listed on any securities exchange, authorization therefor has been given, subject to official notice of Common Stock issuance and evidence of satisfactory distribution, or the Company has filed a preliminary listing application and all required supporting documents with respect to the Securities with such securities exchange and such counsel has no reason to believe that the Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution;
(iii) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance and other laws now or hereinafter in effect relating to, affecting or limiting creditors' rights generally, and subject to general principles of equity (whether considered in a proceeding at law or in equity) and to the discretion of the court before which any proceeding may be brought); and the Securities have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued executed and authenticated in accordance with the 12 12 provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; in the Securities being sold hereunder case of the Underwriters' Securities, or by the purchasers thereof pursuant to Delayed Delivery Contracts, in the case of any Contract Securities, will constitute legal, valid and binding obligations of the Company are duly listed, and admitted and authorized for tradingentitled to the benefits of the Indenture, subject to official notice general principles of issuance equity (whether considered in a proceeding at law or in equity) and evidence of satisfactory distribution, on to the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock discretion of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert court before which any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstandingproceeding may be brought;
(iv) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the ProspectusRegistration Statement, and and, to the knowledge of such counsel, there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit theretoexhibit, which is not described or filed as required; and, to the knowledge of such counsel, the descriptions of the legal proceedings and the statements material contracts included in the Final Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedingsin all material respects;
(v) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best 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 threatened, and the Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein, therein as to which such counsel need express no opinion) comply as to form in all material respects with the 13 13 applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; and such counsel has no reason to believe that on at the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 therein, in the light of the circumstances under which they were made, not misleading or that the Final Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion)misleading;
(vi) this Agreement has and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with authorization or order of any court or governmental agency or body is required in connection with to be obtained by the Company for the consummation by the Company of the transactions contemplated hereinherein or in any Delayed Delivery Contracts, except (i) such as have been obtained under the Act and Act, (ii) such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement Underwriters, and in the Prospectus and (iii) such other approvals (as may be specified in such opinion) as have been obtained;
(ixviii) neither the execution and delivery of the Indenture, the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation hereof or of the Merger any Delayed Delivery Contracts will conflict with, result in a breach or violation of, or imposition of constitute a default under any lien, charge law or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan indenture or other agreement or other agreement, obligation, condition, covenant or instrument known to such counsel and to which the Company or the Subsidiaries any of its subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree known to such counsel to be applicable to the Company or the Subsidiaries any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, body or 14 14 arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;subsidiaries; and
(xix) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions opinion may be subject to certain assumptions, qualifications and exceptions reasonably satisfactory to the Representatives, and in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware Ohio or the Federal laws of the United States, to the extent they deem deemed proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe believed to be reliable and who are satisfactory to counsel for the Underwriters (or, on the assumption that, although contrary to the intent of the parties, the laws of the State of Ohio are to govern) and (B) as to matters of fact, to the extent they deem deemed proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Cravath, Swaine & Moor▇, ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel unsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Indenture, any Delayed Delivery Contracts, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements 15 15 supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date 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 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 Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on change in the condition (financial or otherwiseother), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a wholesubsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder At the Closing Date, Price Waterhouse LLP shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opiniona letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives, confirming that they are independent accountants with respect to The Goodyear Tire & Rubber Company within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and that they have performed a review of the unaudited interim financial information in accordance with Statement of Auditing Standards No. 71 and stating in effect that:
(i) this Agreement in their opinion the audited financial statements and financial statement schedules and pro forma financial statements included or incorporated in the Registration Statement and the Custody Agreement 16 16 Final Prospectus and Power reported on by them comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, Act and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement Exchange Act and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderrelated published rules and regulations;
(ii) assuming that each Underwriter acquires on the basis of a reading of the latest unaudited financial statements made available by the Company and its interest subsidiaries; their limited review in accordance with standards established by the American Institute of Certified Public Accountants under Statement of Auditing Standards No. 71 of any unaudited interim financial information as indicated in their reports, if any, included or incorporated in the Securities it has purchased from Registration Statement and the Selling Stockholder without notice Final Prospectus; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter significance with respect to the comments set forth in such Securitiesletter; a reading of the minutes of the meetings of the stockholders, directors and any committees of the Company and its subsidiaries the Representatives may reasonably request; and inquiries of certain officials of the Company and its subsidiaries 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 included or incorporated in the Final Prospectus, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated in the Registration Statement and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the published rules and regulations of the Commission with respect to financial statements included or incorporated in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements require modifications that should be made for such statements to be in conformity with generally accepted accounting principles applied on a basis substantially 17 17 consistent with that of the audited financial statements included or incorporated in the Registration Statement and the Final Prospectus;
(2) 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 and the Final Prospectus, there were any changes, at a specified date not more than five business days prior to the date of the letter, in the long term debt and capital leases of the Company and its subsidiaries or capital stock or capital surplus of the Company or decreases in the shareholders' equity of the Company or decreases in working capital of the Company and its subsidiaries as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated in the Registration Statement and the Final Prospectus, or for the period from the date of the most recent financial statements included or incorporated in the Registration Statement and the Final Prospectus to such specified date there were any decreases, as compared with the corresponding period in the preceding year or the preceding quarter in net sales or income before income taxes or in total or per share amounts of net income 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 Representatives;
(3) the amounts included in any unaudited "capsule" information included or incorporated in the Registration Statement and the Final Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding 18 18 amounts in the audited financial statements included or incorporated in the Registration Statement and the Final Prospectus; or
(4) the information included in the Registration Statement and Final Prospectus in response to Regulation S- K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation), and Item 503 (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may they have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such performed certain other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliabls
Appears in 1 contract
Sources: Underwriting Agreement (Goodyear Tire & Rubber Co /Oh/)
Conditions to the Obligations of the Underwriters. The obligations of ------------------------------------------------- the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder 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 Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree Representative agrees in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Lippes, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives Representative their opinion, dated the Closing Date and addressed to the RepresentativesRepresentative, to the effect that:
(i) each of the Company, ATX Technologies Company and ATX Europe GmbH (“ATX Europe”) the Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to be so qualified or in good standing would not individually or in the aggregate have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock (including the Underwritten Securities being sold hereunder by the Selling Stockholders) have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for quotation and trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq NASDAQ National MarketMarket ("NASDAQ"); the Underwritten Securities being sold hereunder by the Selling Stockholders are duly listed and admitted for trading on NASDAQ; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, amended the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and or statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtainedobtained and except where the failure to obtain any such consent, approval, authorization or order would not, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business or an adverse effect on the execution and delivery of this Agreement or the consummation of the transactions contemplated herein;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its the Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument known to such counsel and to which the Company or any of the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree known to such counsel to be applicable to the Company or any of the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of the Subsidiaries or any of its or their properties;; and
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State States of Texas New York and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives Selling Stockholders shall have received from furnished to the Representative the opinion of Lippes, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the CompanyStockholders, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have has been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid Stockholders and binding on the Selling Stockholder, and the each Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the such Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the any Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the any Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the any Selling Stockholder or the fulfillment of the terms hereof by the any Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter organizational or By-laws other governing documents of the any Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the any Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the any Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the any Selling Stockholder or any of its subsidiariesStockholder. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas New York and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablreliable and who are satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Selling Stockholders and public officials.
(d) The Representative shall have received from Cravath, Swaine & ▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company and each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(f) Each Selling Stockholder shall have furnished to the Representative a certificate, signed by a majority of the trustees of each such Selling Stockholder, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplement to the Prospectus and this Agreement and that the representations and warranties of such Selling Stockholder in this Agreement are true and correct on and as of the Closing Date to the same effect as if made on the Closing Date.
(g) The Company shall have requested and caused PricewaterhouseCoopers LLC to have furnished to the Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representati
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Offered Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Selling Stockholder Israel contained herein as of the Execution Time, time of the execution of this Agreement and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy in all material respects of the statements of the Company and the Selling Stockholder Israel made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Israel of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM p.m. New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM p.m. New York City time on such date or (ii) 9:30 AM 12:00 noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM p.m. New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be shall have been filed in the manner and within the time period required by Rule 424(b)) and in accordance with Section 5(a) of this Agreement; and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened; and any request of the Commission for additional information shall have been complied with to the satisfaction of the Representatives.
(b) The Company Israel shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their Underwriters the written opinion, satisfactory to the Representatives, of the Legal Advisor to the Ministry of Finance of the State of Israel (the “Legal Advisor”) dated the Closing Date and addressed to the RepresentativesDate, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe Offered Securities have been duly and validly authorized and issued and are fully paid and nonassessable, executed in accordance with the laws of Israel and, except when duly authenticated in accordance with the terms of the Fiscal Agency Agreement and delivered and paid for in accordance with the terms of this Agreement, the Offered Securities will be valid and binding obligations of Israel entitled to the benefits of the Fiscal Agency Agreement;
(ii) the obligations of Israel under the Fiscal Agency Agreement, this Agreement and the Offered Securities are and will be direct, general and unconditional obligations of Israel, and are, under the laws of Israel, subject to civil and commercial substantive and procedural law and to the procedural requirements relating to enforcement and recognition of foreign judgments. The Offered Securities will rank pari passu, without any preference among themselves; the payment obligations of Israel will at all times rank at least equally with all other payment obligations of Israel relating to unsecured and unsubordinated “external indebtedness” (as otherwise set forth defined in the Prospectus, all outstanding shares Offered Securities) of capital stock Israel; the full faith and credit of ATX Technologies Israel has been pledged for the due and ATX Europe are owned by punctual payment of the Company either directly or through wholly owned subsidiaries free principal of and clear interest on the Offered Securities and for the performance of any perfected security interest and, to the knowledge obligations of such counsel, after due inquiry, any other security interest, claim, lien or encumbranceIsrael with respect thereto;
(iii) Israel has the Company’s authorized capitalization is as set forth in power and authority required for the Prospectus; the capital stock execution and delivery of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive Offered Securities and the performance by Israel of its obligations thereunder and hereunder and under the Fiscal Agency Agreement; and none of the execution or other rights to subscribe for delivery by Israel of this Agreement or the Offered Securities; and, except as set forth in the Prospectus, no options, warrants performance of its obligations hereunder or other rights to purchase, agreements thereunder or other obligations to issueunder the Fiscal Agency Agreement, or rights to convert the fulfillment by Israel of the terms hereof or thereof or under the Fiscal Agency Agreement requires, under Israeli law, any obligations into publication, waiver, consent, filing, registration, authorization or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstandingapproval;
(iv) to the knowledge Fiscal Agency Agreement has been duly authorized, executed and delivered by Israel in accordance with the laws of such counsel, there Israel and is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any a valid and binding agreement of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedingsIsrael;
(v) this Agreement has been duly authorized, executed and delivered by Israel in accordance with the laws of Israel;
(vi) all statements in the Registration Statement has become effective Statement, the Time of Sale Prospectus and the Prospectus with respect to or involving laws, statutes and regulations of or pertaining to Israel are accurate in all material respects and fairly present the information purported to be shown;
(vii) the provisions of this Agreement and the Offered Securities wherein Israel consents to the jurisdiction of certain courts in the United States and agrees not to assert the defense of immunity, on the grounds of sovereignty or otherwise, are valid and binding; final judgment against Israel in any such suit, action or proceeding brought, in accordance with such provisions, in the courts of Israel or Federal or state courts in the City of New York would be conclusive and binding upon Israel and may be enforced in the courts of Israel, without retrial or reexamination but subject to the procedural requirements relating to enforcement and recognition of foreign judgments;
(viii) under Israeli law in effect as of the date of such opinion, payments made under the Act; Offered Securities will be exempt from Israeli taxation, and there are no transfer, stamp or similar taxes under the laws of Israel payable in connection with the issuance, transfer and sale of the Offered Securities or the execution and delivery of this Agreement;
(ix) the choice of New York law to govern the validity, construction and performance of this Agreement, the Offered Securities and the Fiscal Agency Agreement would be upheld by an Israeli court as a valid and effective choice of law under the laws of Israel;
(x) none of the execution or delivery by Israel of this Agreement or the Offered Securities, the performance by Israel of its obligations hereunder or thereunder or under the Fiscal Agency Agreement, or the fulfillment by Israel of the respective terms hereof or thereof or of the Fiscal Agency Agreement, will violate any required filing provision of the laws of Israel or, to the best knowledge of the Legal Advisor, violate any order, rule or regulations of any Israeli Court, regulatory body, or administrative body or governmental body;
(xi) none of the execution or delivery by Israel of this Agreement or the Offered Securities, the performance by Israel of its obligations hereunder or thereunder or under the Fiscal Agency Agreement, or the fulfillment of the respective terms hereof or thereof or of the Fiscal Agency Agreement by Israel, will, to the best knowledge of the Legal Advisor after due inquiry, violate, or result in a breach of, the terms of, or cause a default under, any note, note agreement, bank loan, or any other agreement or instrument for money borrowed to which Israel is a party;
(xii) there is no action, suit, or proceeding pending, or to the knowledge of the Legal Advisor, threatened against or affecting Israel, before any court or administrative agency in Israel, challenging the validity or enforceability of this Agreement, the Fiscal Agency Agreement, or the Offered Securities or the transactions contemplated hereby or thereby;
(xiii) the Registration Statement, as amended, any preliminary prospectus supplement, and the Prospectus, and any supplements theretotheir filing with the Commission, pursuant to Rule 424(b) has have been made in the manner duly authorized by and within the time period required by Rule 424(b); to the knowledge on behalf of such counsel, no stop order suspending the effectiveness of Israel and the Registration Statement has been issued, no proceedings for duly executed on behalf of Israel;
(xiv) the Legal Advisor shall further confirm that purpose appropriate officials in the Ministry of Finance have been instituted or threatened apprised of the disclosure standards applicable to the offering described in this Agreement and have reviewed the Time of Sale Prospectus and the Registration Statement Prospectus. Based on such review, the results of which have been discussed with the Legal Advisor, the Legal Advisor shall confirm that, although the Legal Advisor shall not have made an independent investigation or verification of the correctness and completeness of the information included in the Time of Sale Prospectus or the Prospectus, nothing has come to the Legal Advisor’s attention that would lead the Legal Advisor to believe that (other than except as to the financial statements and other financial and statistical information data contained therein, therein as to which such counsel the Legal Advisor need not express no opinionany belief) comply as to form in all material respects with the applicable requirements (a) any part of the Act and the rules thereunder; and Registration Statement, when such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amendedpart became effective, the Registration Statement contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make statements therein not misleading, (b) the Registration Statement or the Prospectus, on the date of this Agreement, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that misleading, (c) the Time of Sale Prospectus as of its the date and on of this Agreement or, as amended or supplemented, if applicable, as of the Closing Date included or includes contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vid) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not beas amended or supplemented, an “investment company” as defined applicable, as of the Closing Date contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution light of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securitiescircumstances under which they were made, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;misleading; and
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) appointment of the Internal Revenue Code Authorized Agent in Section 13 below and any waiver in that section by Israel in respect thereto are legal, valid and binding in accordance with their respective terms under the laws of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the ActIsrael. In rendering such opinion, such counsel the Legal Advisor may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon without independent investigation on the opinion of other counsel of good standing whom they believe pursuant to be reliable and who are satisfactory to counsel for the Underwriters and paragraph (Bc) below as to matters of fact, New York and United States Federal law and such opinion shall be subject to any limitations and exceptions contained in the extent they deem proper, on certificates of responsible officers of the Company and public officialsopinion so relied upon. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives Underwriters shall have received from on and as of the Closing Date an opinion, satisfactory to the Representatives, of A▇▇▇▇▇ & P▇▇▇▇▇ L.L.P.LLP, special United States counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing DateIsrael, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations Offered Securities, when duly authorized, executed, authenticated and warranties issued in accordance with the terms of the Company Fiscal Agency Agreement and delivered and paid for in accordance with the terms of this Agreement are true Agreement, will be valid and correct on and as binding obligations of Israel entitled to the benefits 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 DateFiscal Agency Agreement;
(ii) the Fiscal Agency Agreement constitutes a valid and legally binding agreement of Israel, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iii) no consent, approval, authorization, order, registration, clearance, qualification or filing (each, a “Governmental Authorization”) of or with any United States Federal or state government, administrative agency, commission or other body is required for the issue and sale of the Offered Securities or the consummation by Israel of the transactions contemplated by this Agreement or the Fiscal Agency Agreement, except such as have been obtained under the Act and such Governmental Authorizations as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Offered Securities by the Underwriters;
(iv) the statements in the Registration Statement, the Time of Sale Prospectus and the Prospectus under the captions “Debt Securities”, “Collective Action Securities” and “Description of the Bonds” insofar as they purport to constitute a summary of certain provisions of the Offered Securities and the Fiscal Agency Agreement provide a fair summary of such provisions;
(v) the statements in the Registration Statement and the Prospectus under the caption “Taxation”, insofar as they purport to constitute a summary of the material United States Federal income and estate tax consequences of the purchase, ownership and disposition of the Offered Securities, provide a fair summary of such consequences;
(vi) Israel has validly submitted, under the laws of the State of New York and the Federal laws of the United States, to the jurisdiction of the State and Federal courts in the Borough of Manhattan in the City of New York, in any suit, action or proceeding arising out of or based on this Agreement, the Fiscal Agency Agreement or the Offered Securities, except any such suit, action or proceeding instituted by a holder of the Offered Securities (other than an Underwriter instituting such suit, action or proceeding in its capacity as an Underwriter under this Agreement) arising out of or based on United States Federal or state securities laws;
(vii) the documents expressly incorporated by reference in the Time of Sale Prospectus and the Prospectus as amended or supplemented (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, appear on their face to comply as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder;
(viii) the agreement of Israel contained in this Agreement, the Offered Securities and the Fiscal Agency Agreement that each will be governed and construed in accordance with the laws of the State of New York, except with respect to its authorization and execution by and on behalf of Israel, is valid and binding;
(ix) the Offered Securities are exempt from the provisions of the Trust Indenture Act of 1939, as amended, under Section 304(a)(6) of said Act, and no indenture in respect of the Offered Securities need be qualified under said Act; and
(x) the Registration Statement has become effective under the Act as of the date and time specified in such opinion, and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to are pending before or threatened by the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their Commission. In giving such opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
A▇▇▇▇▇ & P▇▇▇▇▇ LLP may (i) assume that the Fiscal Agency Agreement, the Offered Securities and this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid appropriate party or parties thereto and binding on the Selling Stockholder, and the Selling Stockholder that each such party has full legal right adequate power and authority to sell, transfer enter therein and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest rely without independent investigation on the opinion delivered pursuant to paragraph (b) above as to matters governed by the laws of Israel and such opinion shall be subject to any limitations and exceptions contained in the Securities it has purchased from opinion delivered pursuant to paragraph (b) above. In addition, A▇▇▇▇▇ & P▇▇▇▇▇ LLP shall have furnished the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC)Underwriters with a letter, each Underwriter that has purchased such Securities delivered on dated the Closing Date Date, confirming that as United States counsel to The Depository Trust Company Israel, such counsel reviewed the Registration Statement, the Time of Sale Prospectus and the Prospectus as then amended or other securities intermediary by making payment therefor as provided hereinsupplemented, participated in discussions with your representatives and those of Israel and its Israeli counsel, and that has had such Securities credited advised Israel as to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution requirements of the Securities by Act and the Underwriters applicable rules and regulations thereunder; on the basis of the information that such other approvals (specified counsel gained in the course of the performance of such services, considered in the light of their understanding of the applicable law and the experience they have gained through their practice under the Securities Act, such counsel will confirm to you that, in their opinion) , the Registration Statement and the Prospectus as have been obtained; and
(iv) neither then amended or supplemented, as of the sale Effective Date of the 2004 Registration Statement and as of the latest Effective Date of any part of the Registration Statement, appeared on their face to be appropriately responsive in all material respects to the requirements of the Securities being sold by Act and the Selling Stockholder nor the consummation of any other applicable rules and regulations of the transactions herein contemplated by Commission thereunder; nothing that came to such counsel’s attention in the Selling Stockholder or the fulfillment course of the terms hereof by the Selling Stockholder will conflict with, result limited procedures described in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to letter has caused such counsel to be applicable to the Selling Stockholder or believe that any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws part of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablRegi
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, Transition Bonds shall be subject to the accuracy of the representations and warranties on the part of the Company Issuer and the Selling Stockholder Company contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereof, to on the accuracy of the statements part of the Company contained in the Sale Agreement and the Selling Stockholder made in any certificates pursuant to Servicing Agreement as of the provisions hereofClosing Date, to the performance by the Company Issuer and the Selling Stockholder Company of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree Representative agrees in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date date, or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be shall have been filed in the manner and within the time period required by Rule 424(b424 (b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Representative shall have requested received opinions of counsel for the Company, portions of which may be delivered by LeBoeuf, Lamb, Greene & MacRae, L.L.P., outside counsel for the Company, and caused ▇▇▇▇▇ons of w▇▇▇▇ ▇ay be delivered by Randall V. Griffin, in-house counsel for the Company, each da▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPte and each subject to customary qualifications, counsel for the Companyexceptions, to have furnished and limitations, in form and substance reasonably satisfactory to the Representatives their opinion, dated the Closing Date and addressed to the RepresentativesRepresentative, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH Company (“ATX Europe”a) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full (b) has all requisite corporate power and authority to own or leaseits properties, as the case may be, and to operate its properties and conduct its business as described in presently conducted and execute, deliver and perform its obligations under this Agreement, the ProspectusSale Agreement, and the Servicing Agreement, as applicable, and (c) is duly qualified to do business as a foreign corporation business, in all jurisdictions (and is in good standing under the laws of all such jurisdictions) to the extent that such qualification and good standing is or shall be necessary to protect the validity and enforceability of this Agreement, the Basic Documents to which the Company is party and each jurisdiction which requires such qualificationother instrument or agreement necessary or appropriate to the proper administration of this Agreement and the transactions contemplated hereby;
(ii) all the outstanding shares of capital stock of ATX Technologies Sale Agreement and ATX Europe the Servicing Agreement have been duly authorized, executed and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned delivered by the Company either directly or through wholly owned subsidiaries free and clear constitute legal, valid and binding agreements of any perfected security interest andthe Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium and other similar laws and to equitable principles affecting the knowledge rights and remedies of such counsel, after due inquiry, any other security interest, claim, lien or encumbrancecreditors generally);
(iii) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property subsidiaries of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit, which is not described or filed as required;
(iv) this Agreement has been duly authorized, executed and delivered by the Company;
(v) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Company, of the transactions contemplated herein, except such as have been obtained under the New Jersey Electric Discount and Energy Competition Act (the "Competition Act") and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Transition Bonds by the Underwriters and such other consents, approvals and authorizations as have been obtained;
(vi) neither the execution and delivery of this Agreement, the Sale Agreement, or the Servicing Agreement, nor the consummation of the transactions contemplated by this Agreement, the Sale Agreement or the Servicing Agreement, nor the fulfillment of the terms of this Agreement, the Sale Agreement or the Servicing Agreement by the Company will (A) conflict with, result in any breach of any of the terms or provisions of, or constitute (with or without notice or lapse of time) a default under the articles of incorporation, bylaws or other organizational documents of the Company, or conflict with or breach any of the material terms or provisions of, or constitute (with or without notice or lapse of time) a default under, any indenture, material agreement or other material instrument to which the Company is a party or by which the Company is bound, (B) result in the creation or imposition of any lien upon any properties of the Company pursuant to the terms of any such indenture, agreement or other instrument (other than as contemplated by the Basic Documents and the Competition Act), or (C) violate any law or any order, rule or regulation applicable to the Company of any court or of any federal or New Jersey regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Company or any of its properties;
(vii) all filings, that are necessary to fully preserve and protect the interests of the Issuer in the Bondable Transition Property have been executed and filed; and
(viii) neither the execution and delivery of this Agreement, the Sale Agreement, the Servicing Agreement or the Indenture, nor the issue and sale of the Transition Bonds, nor the consummation of the transactions contemplated by this Agreement, the Sale Agreement, the Servicing Agreement or the Indenture, nor the fulfillment of the terms of this Agreement, the Sale Agreement, the Servicing Agreement or the Indenture, by the Issuer will violate the terms of the Mortgage and Deed of Trust dated January 15, 1937, as amended, between the Company and The Bank of New York, as trustee. In rendering such opinions, such counsel may rely as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representative shall have received opinions of counsel for the Issuer, portions of which may be delivered by LeBoeuf, Lamb, Greene & MacRae L.L.P., outside counsel for the Issuer, ▇▇▇ p▇▇▇▇▇▇s of whi▇▇ ▇▇▇ be delivered by Randall V. Griffin, in-house counsel for the Company, each da▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇te, in form and substance reasonably satisfactory to the Representative, to the effect that:
(i) the Issuer has been duly formed and is validly existing as a limited liability company and is in good standing under the laws of the State of Delaware, with all requisite limited liability company power to execute, deliver and perform its obligations under this Agreement, the Sale Agreement, the Servicing Agreement, the Administration Agreement and the Indenture;
(ii) the Sale Agreement, the Servicing Agreement, the Administration Agreement and the Indenture have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding agreements of the Issuer enforceable against the Issuer in accordance with their terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium and other similar laws and to equitable principles affecting the rights and remedies of creditors generally); and the Transition Bonds have been duly authorized and executed by the Issuer, and when authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will constitute legal, valid and binding obligations of the Issuer entitled to the benefits of the Indenture and enforceable against the Issuer in accordance with their terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium and other similar laws and to equitable principles affecting the rights and remedies of creditors generally);
(iii) this Agreement has been duly authorized, executed and delivered by the Issuer;
(iv) the Indenture has been duly qualified under the Trust Indenture Act;
(v) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Issuer, or relating to the Transition Bonds, the Competition Act, the bondable stranded costs rate order issued by the BPU to the Company on September 20, 2002 (the "Financing Order") or the use and enjoyment of Bondable Transition Property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit theretoto the Registration Statement, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(vvi) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counselcounsel (and after being advised by the staff of the Commission to such effect), no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened threatened, and the Registration Statement and the Final Prospectus (other than the financial statements and the notes and schedules thereto and other financial and statistical information contained therein, therein and in the Form T-1 as to which such counsel need express no opinionbelief) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; and in addition, such counsel shall confirm, on the basis of certain assumptions, that such counsel has no reason to believe that on at the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 therein, in the light of the circumstances under which they were made, not misleading or that the Final Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, therein as to which such counsel need express no opinionbelief);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with authorization or order of any court or governmental agency or body is required in connection with for the consummation by the Issuer of the transactions contemplated herein, except such as have been obtained under the Competition Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities Transition Bonds by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other consents, approvals (specified in such opinion) and authorizations as have been obtained;
(ixviii) neither the execution and delivery of this Agreement, the Sale Agreement, the Servicing Agreement, the Administration Agreement or the Indenture, nor the issue and sale of the SecuritiesTransition Bonds, nor the consummation of any other of the transactions herein contemplatedcontemplated by this Agreement, the Sale Agreement, the Servicing Agreement, the Administration Agreement or the Indenture, nor the fulfillment of the terms hereofof this Agreement, nor the consummation of Sale Agreement, the Merger Servicing Agreement, the Administration Agreement or the Indenture by the Issuer, will (A) conflict with, result in a any breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation provisions of, or constitute (with or without notice or lapse of time) a default under the Issuer LLC Agreement, or conflict with or breach any law or the charter or By-laws of the Selling Stockholder terms or the terms provisions of, or constitute (with or without notice or lapse of time) a default under, any indenture indenture, agreement or other agreement or instrument known to such counsel and to which the Selling Stockholder Issuer is a party or by which the Issuer is bound, (B) result in the creation or imposition of any lien upon any properties of the Issuer pursuant to the terms of any such indenture, agreement or other instrument (other than as contemplated by the Basic Documents and the Competition Act), or (C) violate any law or any order, rule or regulation applicable to the Issuer of any court or of any federal or New Jersey or Delaware regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Issuer, or any of its subsidiaries properties;
(ix) the Indenture is effective to create in favor of the Bond Trustee for the benefit of the Transition Bondholders a security interest in the Collateral (as defined in the Indenture) consisting of the Bondable Transition Property and (to the extent a security interest therein can be granted under the New Jersey UCC or the Delaware UCC, as applicable) in the proceeds of the Bondable Transition Property; upon the issuance of the Transition Bonds and the giving of value to the Issuer by the Bond Trustee on behalf of the purchasers of the Transition Bonds with respect to the Bondable Transition Property and such proceeds, such security interest in the Bondable Transition Property, and in the portion of the proceeds of the Bondable Transition Property in which a security interest can be perfected by filing in the respective jurisdictions, will be perfected; and based solely on the Search Reports and factual certificates, such perfected security interest will rank prior to any other security interest of any other creditor of the Issuer with respect to the Bondable Transition Property and such portion of such proceeds;
(x) the Indenture is effective to create in favor of the Bond Trustee for the benefit of the Transition Bondholders a security interest in the Collateral consisting of the Issuer's rights in the Sale Agreement, the Bill of Sale, the Servicing Agreement and the Administration Agreement (collectively, the "Pledged Contracts"); upon the issuance of the Transition Bonds and the giving of value to the Issuer by the Bond Trustee on behalf of the purchasers of the Transition Bonds with respect to the Pledged Contracts, such security interest in the Pledge Contracts will be perfected; and based solely on the Search Reports and factual certificates, such perfected security interest will rank prior to any other security interest of any other creditor of the Issuer with respect to the Pledged Contracts;
(xi) the Indenture is effective to create in favor of the Bond Trustee for the benefit of the Transition Bondholders a security interest in (i) the Collection Account and the Subaccounts (each as defined in the Indenture) for the Series (collectively, the "Accounts") and (ii) to the extent a security interest therein can be granted under the New Jersey UCC, all of the Collateral held in or credited to the Accounts; and assuming that (i) the Bond Trustee in its capacity as securities intermediary is a party or bound"securities intermediary" within the meaning of Section 8-102(a)(4) of the New Jersey UCC, or any judgment, order or decree known to such counsel to be applicable (ii) the parties to the Selling Stockholder Indenture and the Control Agreement (as defined in the Indenture) comply with the terms thereof, and (iii) no person or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other entity other than the State of Texas Bond Trustee in its capacity as trustee under the Indenture obtains and the State of Delaware or the Federal laws maintains "control" (as defined in Section 8-106 of the United States, to New Jersey UCC) of the extent they deem proper and specified in such opinion, upon the opinion Accounts or of other counsel of good standing whom they believe to be reliablany suc
Appears in 1 contract
Sources: Underwriting Agreement (Atlantic City Electric Transition Funding 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 and the Selling Stockholder 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 Stockholder Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Bracewell & Patterson, L.L.P., counsel for the Company, to have fu▇▇▇▇▇▇▇ ▇o the ▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives ▇▇▇entatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the CompanyCompany and BEI Electronics Ireland Limited, ATX Technologies and ATX Europe GmbH a Republic of Ireland private limited company (“ATX Europe”) the "Subsidiary"), has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe the Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe the Subsidiary are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s 's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock (including the Securities being sold hereunder by the Selling Stockholders) have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold by the Selling Stockholders are duly listed, and admitted and authorized for trading on the New York Stock Exchange and the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distributionissuance, on the Nasdaq National MarketNew York Stock Exchange; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date or at the date the Registration Statement was last deemed amended, Execution Time the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “"investment company” " as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, contemplated nor the fulfillment of the terms hereof, nor the consummation of the Merger hereof will conflict with, result in a breach or violation of, of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries its subsidiaries pursuant to, (i1) the charter or by-laws of the Company or its Subsidiariessubsidiaries, (ii2) 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 or the Subsidiaries its subsidiaries is a party or bound or to which its or their property is subject, or (iii3) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries its subsidiaries or any of its or their properties;; and
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all Statement except for such rights of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the ActSelling Stockholders. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State States of New York and Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Selling Stockholders shall have requested and caused Wyatt, Tarrant & Combs, counsel for the Selling Stockholders, to h▇▇▇ ▇urnished to ▇▇▇ ▇epresentatives their opinion dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement has been duly authorized, executed and delivered by the Selling Stockholders and each Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) the delivery by each Selling Stockholder to the several Underwriters of certificates for the Securities being sold hereunder by such Selling Stockholder against payment therefor as provided herein, will pass good and marketable title to such Securities to the several Underwriters, free and clear of all liens, encumbrances, equities and claims whatsoever;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by any Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by any Selling Stockholder nor the consummation of any other of the transactions herein contemplated by any Selling Stockholder or the fulfillment of the terms hereof by any Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which any Selling Stockholder [or any of its subsidiaries] is a party or bound, or any judgment, order or decree known to such counsel to be applicable to any Selling Stockholder [or any of its subsidiaries] of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over any Selling Stockholder [or any of its subsidiaries]. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of [ ] or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Selling Stockholders and public officials.
(d) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.Cravath, Swaine & Moore, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date 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 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 or incorporated by reference in the Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiariessubsidiaries, 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 Prospectus (exclusive of any supplement thereto).
(ef) Each Selling Stockholder shall have furnished to the Representatives a certificate, signed by the Chairman of the Board or the President and the principal financial or accounting officer of such Selling Stockholder, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplement to the Prospectus 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 Selling Stockholder Company shall have requested and caused , counsel for the Selling Stockholder, KPMG LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives, to confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for the three-month period ended March 31, 1999, and as at March 31, 1999, in accordance with Statement on Auditing Standards No. 71, and stating in effect that:
(i) this Agreement in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Custody Agreement Prospectus and Power reported on by them comply as to form in all material respects with the applicable accounting requirements of Attorney have been duly authorized, executed the Act and delivered the Exchange Act and the related rules and regulations adopted by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunderCommission;
(ii) assuming that each Underwriter acquires its interest in on the Securities it has purchased from the Selling Stockholder without notice basis of any adverse claim (within the meaning of Section 8-105 a reading of the UCC)latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, each Underwriter that has purchased such Securities delivered in accordance with standards established under Statement on Auditing Standards No. 71, of the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided hereinunaudited interim financial information for the three-month period ended March 31, 1999, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained as at March 31, 1999; carrying out certain specified procedures (but not an examination in accordance with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17generally accepted auditing standards) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablwould not
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, Senior Notes shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date date, or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, 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 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 their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organizedState of Wisconsin, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires Michigan; the Company is a "public utility company" as such qualification;term is defined under the Public Utility Holding Company Act.
(ii) all All of the Company's issued and outstanding shares of capital common stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned of record by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) WPSR; the Company’s 's authorized capitalization preferred stock is as set forth in the Final Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Final Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;.
(iviii) to To the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries its subsidiaries or its or their property property, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;.
(viv) the The Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 threatened, and the Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date or at the date the Registration Statement was last deemed amended, Execution Time the Registration Statement contained any 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 on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(viv) this This Agreement has been duly authorized, executed and delivered by the Company;.
(vi) The Senior Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and binding instrument enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to the Bankruptcy Exceptions; the Senior Indenture has been duly qualified under the Trust Indenture Act; the Senior Indenture conforms in all material respects to the description thereof contained in the Final Prospectus.
(vii) The Senior Notes have been duly authorized by the Company, and when executed and authenticated in accordance with the provisions of the Senior Indenture and delivered and paid for by the Underwriters pursuant to this Agreement, will constitute valid and legally binding obligations of the Company entitled to the benefits and security provided by the Senior Indenture and enforceable against the Company in accordance with their terms, subject, as to enforcement of remedies, to the Bankruptcy Exceptions; the Senior Notes conform in all material respects to the description thereof contained in the Final Prospectus.
(viii) The Mortgage Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and binding instrument, enforceable against the Company in accordance with its terms, except as the same may be limited by the laws of the States of Wisconsin and Michigan affecting the remedies for the enforcement of the security provided for therein (which laws do not in such counsel's opinion make such remedies inadequate for the realization of the benefits of such security) and by the Bankruptcy Exceptions; the Mortgage Indenture conforms in all material respects to the description thereof contained in the Final Prospectus.
(ix) The Collateral Bonds have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Mortgage Indenture, and issued, pledged and delivered to the Senior Trustee pursuant to the Senior Indenture as security for the Senior Notes, will constitute valid and legally binding obligations of the Company, secured by the lien of, and entitled to the benefits provided by, the Mortgage Indenture, equally and ratably with all other bonds of the Company duly issued and outstanding under the Mortgage Indenture, and will be enforceable against the Company in accordance with their terms, except as the same may be limited by the laws of the States of Wisconsin and Michigan affecting the remedies for the enforcement of the security provided for therein (which laws do not in such counsel's opinion make such remedies inadequate for the realization of the benefits of such security) and by the Bankruptcy Exceptions; the Collateral Bonds conform in all material respects to the description thereof contained in the Final Prospectus.
(x) The Company has good and marketable title to the real and fixed properties described in the Mortgage Indenture (other than properties disposed of and released thereunder and lands described as held only under flowage rights) free and clear of all liens, charges and encumbrances against the same prior to or on a parity with the lien of the Mortgage Indenture, except for and subject only to permissible encumbrances as defined in the Mortgage Indenture and to such exceptions, defects and qualifications as in such counsel's opinion do not materially affect the security for the Collateral Bonds or the Company's title to or its right to use such properties in the conduct of its business; the Mortgage Indenture constitutes a valid and direct first lien upon all real and fixed property and governmental licenses and permits owned by the Company (including its interests as tenant-in-common), except property specifically excepted from the Mortgage Indenture by the terms thereof, subject to no liens or encumbrances prior to or on a parity with the lien of the Mortgage Indenture, except permissible encumbrances as defined in the Mortgage Indenture; and the description in the Mortgage Indenture of said property is adequate to constitute the Mortgage Indenture a lien thereon. No examination of title covering rights-of-way for transmission and distribution lines has been made inasmuch as the Company has been advised that the expense incident to the obtaining of abstracts or certificates of title and of examinations in respect thereto would be in excess of the cost of reacquiring by condemnation or purchase, possession and use of such parts of such rights-of-way as might be held under defective titles, and accordingly, such opinion does not cover such rights-of-way. Such counsel has relied on certificates of officers of the Company to the effect that certain parcels described in the Mortgage Indenture are rights-of-way and that certain parcels are not required as an integral part of the Company's properties or are not indispensable to its operations. All real property hereafter acquired by the Company and located in counties in which the Mortgage Indenture shall be of record will, upon acquisition, become subject to the lien of the Mortgage Indenture, subject, however, to permitted encumbrances and liens (as defined in the Mortgage Indenture), any liens existing or placed thereon at acquisition and any liens which might intervene prior to the filing or recording of the instrument containing a sufficient legal description confirming of record that such property is subject to the lien of the Mortgage Indenture, except as the existence or validity of the lien of the Mortgage Indenture may be affected by the application of [Sections 547 and/or 552 ] of the U.S. Bankruptcy Code or by analogous provisions of applicable state insolvency laws.
(xi) The Mortgage Indenture has been duly recorded or filed for record in each county in the States of Wisconsin and Michigan where any real properties described in such instrument are located and in all other places required by law in order to perfect the lien upon the property described in the First Mortgage Indenture.
(xii) The Company has statutory authority, franchises, and consents free from burdensome restrictions and adequate for the conduct of the business in which it is engaged as described in the Final Prospectus, except to the extent that the absence of such statutory authority or the failure to obtain such franchises or consents would not, singly or in the aggregate, (A) affect the security for the Collateral Bonds, or (B) have a material 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 or contemplated in the Final Prospectus.
(xiii) The issuance and delivery by the Company of the Collateral Bonds to the Trustee constitute a sale by the Company of the Collateral Bonds to the Trustee as of the Closing Date or, if not a sale, the grant by the Company to the Trustee of a perfected security interest in the Collateral Bonds for the benefit of the holders of the Senior Notes.
(xiv) The Company is not and, after giving effect to the offering and sale of the Securities Senior Notes and the application of the proceeds thereof as described in the Final Prospectus, will not be, be an “"investment company” " as defined in the Investment Company Act of 1940, as amended;.
(viiixv) no The Public Service Commission of Wisconsin has duly authorized the issuance and sale by the Company of the Senior Notes and the issuance and pledge of the Collateral Bonds on the terms set forth in the Final Prospectus and this Agreement, and such authorization is, to the best knowledge of such counsel, in force and effect and sufficient for the issuance and sale of the Senior Notes to the Underwriters and the issuance and pledge of the Collateral Bonds to the Senior Trustee. No consent, approval, authorization, filing with or order of any court or other governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and the Trust Indenture Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities Senior Notes by the Underwriters in the manner contemplated in this Agreement herein and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;Final Prospectus.
(ixxvi) neither The execution and delivery of the issue Senior Indenture or the Supplemental Indenture to the Mortgage Indenture, the issuance and sale of the SecuritiesSenior Notes, nor the issuance and pledge of the Collateral Bonds, the consummation of any other of the transactions herein contemplated, nor contemplated or the fulfillment of the terms hereof, nor the consummation of the Merger hereof will not conflict with, result in a breach or violation of, of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its SubsidiariesCompany, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument (other than the lien of the Mortgage Indenture) known to such counsel to which the Company or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulationor regulation applicable to the Company, or (iv) any judgment, order or decree known to such counsel and applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;.
(xxvii) except as set forth in or contemplated in To the Prospectus (exclusive knowledge of any supplement thereto)such counsel, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) may rely as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware Wisconsin or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and Underwriters, (B) may assume, as to matters of New York law relating to this Agreement, that New York law does not differ from Wisconsin law in any material respect, and (C) may rely, as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P.& ▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the SecuritiesSenior Notes, the issuance and pledge of the Collateral Bonds, the Senior Indenture, the Mortgage Indenure,the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliablt
Appears in 1 contract
Sources: Underwriting Agreement (Wisconsin Public Service 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 Stockholder 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 and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its their respective obligations hereunder and to the following additional conditions:
: (a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM p.m., New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM p.m., New York City time time, on such date or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM p.m., New York City time time, on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to the applicable paragraph of Rule 424(b), the Prospectus, and any such supplement, 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 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 their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company, ATX Technologies and ATX Europe GmbH (“ATX Europe”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of ATX Technologies and ATX Europe have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of ATX Technologies and ATX Europe are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings “Description of Capital Stock,” “Certain Relationships and Related Party Transactions,” “Shares Eligible for Future Sale” and “Underwriting”, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended, the Registration Statement contained any 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 Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, nor the consummation of the Merger will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to, (i) the charter or by-laws of the Company or its Subsidiaries, (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 or the Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiaries or any of its or their properties;
(x) except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xi) the Merger complied with applicable law and did not require the consent or approval of any third party that was not obtained;
(xii) in connection with the Merger, the Company properly (A) exchanged all of the outstanding shares of ATX Technologies’ Series A, Series B, Series C and Series D preferred stock, together with accrued but unpaid dividends and all rights associated with such shares of stock for shares of Common Stock, (ii) exchanged one share of Common Stock for each shares of outstanding common stock in ATX Technologies, (iii) exchanged 3,652,605 shares of Common Stock for approximately $6.0 million of long-term deferred interest owed under the terms of the line of credit issued by ▇▇▇▇▇▇▇▇▇ to the Company and (iv) assumed all of the outstanding stock options and common stock purchase warrants of ATX Technologies. The foregoing actions in connection with the Merger were effected in full compliance with applicable law and any contractual obligations of ATX Technologies and the Company;
(xiii) the Merger was duly authorized by the Company, the Merging Entity and ATX Technologies;
(xiv) the Merger is legal, effective and valid and was consummated in accordance with the laws of the State of Texas and the State of ;
(xv) the Merger constituted a tax-free reorganization pursuant to Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended; and
(xvi) the issuance of the Common Stock in connection with the Merger was exempt from the registration provisions of the Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus 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 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Selling Stockholder shall have requested and caused , counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder, the Custody Agreement is valid and binding on the Selling Stockholder, and the Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or By-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas and the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliabl
Appears in 1 contract