Capital Increase and Initial Subscription. (a) The Representatives, acting in their own name but for the accounts of the several Underwriters, agree, on the basis of the representations, warranties and agreements herein contained, to: (i) subscribe, on or by 6.00 a.m. (New York City Time) on the Business Day preceding the day the Board shall pass a capital increase resolution (Erhöhungsbeschluss) (the latter date being the “Underwritten Capital Increase Date,” which is the second Business Day immediately preceding the First Closing Date), or such other time and date as agreed between the Issuer and the Representatives, for all of the Underwritten Securities and [NUMBER] Option Securities at the issue price (Ausgabebetrag) of CHF 0.03 per Security corresponding to the nominal value of each Security and to deliver the corresponding subscription form (Zeichnungsschein) to the Issuer in the form of Exhibit A in original form (wet ink signed) by no later than 6.00 a.m. New York City time on the Underwritten Capital Increase Date; and (ii) deposit or cause to be deposited, not later than 7:30 a.m. New York City time on the Business Day preceding the Underwritten Capital Increase Date, or such other time and date as agreed between the Issuer and the Representatives, same-day funds in Swiss francs free of bank charges for value in an amount corresponding to the aggregate nominal value of the Underwritten Securities and [NUMBER] Option Securities (the “Underwritten Capital Increase Amount”) with UBS AG, Basel, Switzerland (the “Capital Increase Bank”), in a blocked account for such capital increase (Kapitaleinzahlungskonto), IBAN: XX00 00000000 000000X0X, made out to the Issuer’s name (the “Underwritten Capital Increase Account”), and to cause the Capital Increase Bank to issue and deliver a written confirmation of payment in original form of the Underwritten Capital Increase Amount to the Issuer no later than 2:30 a.m. New York City time on the Underwritten Capital Increase Date (or such other time and date as agreed between the Issuer and the Representatives). (b) Upon completion of the items referred to in Section 3(a) and in no event later than 6:00 a.m. New York City time on the Underwritten Capital Increase Date, or such other time and date as agreed between the Issuer and the Representatives, the Board (or a committee or a Board member duly authorized by the Board) will: (i) pass a capital increase resolution (Erhöhungsbeschluss) regarding the issuance of the Underwritten Securities and [NUMBER] Option Securities subscribed for pursuant to Section 3(a)(i) (the “Underwritten Capital Increase”); (ii) adopt a report on the Underwritten Capital Increase (Kapitalerhöhungsbericht) and take note of the auditors’ report (Prüfungsbestätigung), all in accordance with Swiss statutory law; (iii) resolve on the Underwritten Capital Increase and make all amendments to the articles of association of the Issuer necessary in connection with the Underwritten Capital Increase (Feststellungs- und Statutenänderungsbeschluss); and (iv) file the documents necessary for the registration of the Underwritten Capital Increase with the Commercial Register of the Canton of Basel-Stadt; provided, however, that if this Underwriting Agreement is terminated pursuant to Section 10 prior to the Issuer filing the relevant resolutions with the Commercial Register of the Canton of Basel-Stadt, (a) the Issuer undertakes not to resolve on the Underwritten Capital Increase (if it has not already done so) or to file the relevant resolutions with the Commercial Register of the Canton of Basel-Stadt, and (b) the Issuer shall immediately cause the Capital Increase Bank to release the Underwritten Capital Increase Amount in full to the Representatives, acting for the accounts of the several Underwriters, as soon as practicable; and the Underwriters understand that the Capital Increase Bank may require confirmation, including from the Underwriters, to release the Underwritten Capital Increase Amount and the Underwriters agree to deliver such confirmation. (c) Immediately after the registration of the Underwritten Capital Increase in the Commercial Register of the Canton of Basel-Stadt pursuant to Section 3(b), but in no event later than 6:00 a.m. New York City time on the Business Day following the Underwritten Capital Increase Date, the Issuer will: (i) deliver to each of the Representatives, the Capital Increase Bank and the share registrar of the Issuer, (a) a copy of the certified excerpt of the journal entry (Tagebuch) or a copy of the certified excerpt from the Commercial Register of the Canton of Basel-Stadt evidencing the Underwritten Capital Increase, (b) a copy of the certified updated articles of association of the Issuer evidencing the Underwritten Capital Increase, (c) a copy of the Issuer’s book of uncertificated securities (Wertrechtebuch) evidencing the Underwriters as first holders of the Underwritten Securities, and (d) a copy of the share register (Aktienbuch) of the Issuer evidencing the Underwriters as shareholders with respect to the Underwritten Securities; and (ii) take all steps necessary to ensure that the Underwritten Securities will be (a) duly recorded in an account of the Underwriters at DTC on the First Closing Date; and (b) freely transferable (subject to any applicable restrictions set forth in the articles of association of the Issuer) on the First Closing Date. (d) The funds deposited in the Underwritten Capital Increase Account, shall, upon registration of the Underwritten Capital Increase pursuant to Section 3(b) and upon request by the Representatives, be transferred to a separate account of the Issuer with [●] and shall, in such case, remain so deposited for the account of the Issuer until the earlier of: (i) the issuance of the Underwritten Securities to the Underwriters as set forth in Section 3(c) on the First Closing Date; and (ii) the date of receipt by the Representatives on behalf of the several Underwriters of the proceeds of (A) the sale of the Underwritten Securities as set forth in Sections 11(b), 11(c) or 11(e) or (B) the Capital Reduction as set forth in Section 11(d), as the case may be. Any fees payable to the Capital Increase Bank for any transfer of the funds deposited in the Underwritten Capital Increase Account pursuant to this Section 3(d) shall be payable directly to the Capital Increase Bank by the Issuer.
Appears in 1 contract
Capital Increase and Initial Subscription. (a) The RepresentativesXxxxxxx Sachs & Co. LLC, acting in their its own name but for the accounts of the several Underwriters, agreeagrees, on the basis of the representations, warranties and agreements herein contained, to:
(i) subscribe, on or by 6.00 no later than 5:00 a.m. (New York City Time) time on the Business Day preceding the day the Board shall pass a capital increase resolution (Erhöhungsbeschluss) (the latter date being the “Underwritten Capital Increase Date,” which is the second Business Day immediately preceding the First Closing Date), or such other time and date as agreed between the Issuer and the Representatives, for all of the (A) Underwritten Securities and [NUMBER] (B) Issuer Option Securities for which the Underwriters have exercised their option to purchase pursuant to Section 2(c) in a manner such that the delivery of such Issuer Option Securities shall be made at the First Closing Date (the “First Applicable Issuer Option Securities”) at the issue price (Ausgabebetrag) of CHF 0.03 per Security corresponding to the nominal value of each Security and to deliver the corresponding subscription form (Zeichnungsschein) to the Issuer XXXXXXX XX, Aeschenvorstadt 4, 4010 Basel, Switzerland, in the form of Exhibit A A1 in original form (wet ink signed) by no later than 6.00 5:00 a.m. New York City time on the Underwritten Capital Increase Date; and
(ii) deposit or cause to be deposited, not later than 7:30 4:00 a.m. New York City time on the Business Day preceding the Underwritten Capital Increase Date, or such other time and date as agreed between the Issuer and the Representatives, same-day funds in Swiss francs free of bank charges for value in an amount corresponding to the aggregate nominal value of the Underwritten Securities and [NUMBER] First Applicable Issuer Option Securities (the “Underwritten Capital Increase Amount”) with UBS AG, Basel, Switzerland (the “Capital Increase Bank”), in a blocked account for such capital increase (Kapitaleinzahlungskonto), IBAN: XX00 00000000 000000X0XXX0000000000000000X0X, made out to the Issuer’s name (the “Underwritten Capital Increase Account”), and to cause the Capital Increase Bank to issue and deliver a written confirmation of payment in original form of the Underwritten Capital Increase Amount to the Issuer XXXXXXX XX, Aeschenvorstadt 4, 4010 Basel, Switzerland no later than 2:30 5:00 a.m. New York City time on the Underwritten Capital Increase Date (or such other time and date as agreed between the Issuer and the Representatives).
(b) Upon completion of the items referred to in Section 3(a) and and, with respect to the actions pursuant to Section 3(b)(i)-(iii), in no event later than 6:00 1:00 p.m. New York City time on the Underwritten Capital Increase Date and, with respect to the action pursuant to Section 3(b)(iv), in no event later than 4:00 a.m. New York City time on the Business Day following the Underwritten Capital Increase Date, or such other time and date as agreed between the Issuer and the Representatives, the Board (or a committee or a Board member duly authorized by the Board) will:
(i) pass a capital increase resolution (Erhöhungsbeschluss) regarding the issuance of the Underwritten Securities and [NUMBER] the First Applicable Issuer Option Securities subscribed for pursuant to Section 3(a)(i) (the “Underwritten Capital Increase”);
(ii) adopt a report on the Underwritten Capital Increase (Kapitalerhöhungsbericht) and take note of the auditors’ report (Prüfungsbestätigung), all in accordance with Swiss statutory law;
(iii) resolve on the Underwritten Capital Increase and make all amendments to the articles of association of the Issuer necessary in connection with the Underwritten Capital Increase (Feststellungs- und Statutenänderungsbeschluss); and
(iv) file the documents necessary for the registration of the Underwritten Capital Increase with the Commercial Register of the Canton of Basel-StadtZug; provided, however, that if this Underwriting Agreement is terminated pursuant to Section 10 prior to the Issuer filing the relevant resolutions with the Commercial Register of the Canton of Basel-StadtZug, (a) the Issuer undertakes not to resolve on the Underwritten Capital Increase (if it has not already done so) or to file the relevant resolutions with the Commercial Register of the Canton of Basel-StadtZug, and (b) the Issuer shall immediately cause the Capital Increase Bank to release the Underwritten Capital Increase Amount in full to the RepresentativesXxxxxxx Xxxxx & Co. LLC, acting for the accounts of the several Underwriters, as soon as practicable; and the Underwriters understand Xxxxxxx Sachs & Co. LLC understands that the Capital Increase Bank may require confirmation, including from the UnderwritersXxxxxxx Xxxxx & Co. LLC, to release the Underwritten Capital Increase Amount and the Underwriters agree Xxxxxxx Sachs & Co. LLC agrees to deliver such confirmation.
(c) Immediately after the registration of the Underwritten Capital Increase in the Commercial Register of the Canton of Basel-Stadt Zug pursuant to Section 3(b), but in no event later than 6:00 9:30 a.m. New York City time on the Business Day following the Underwritten Capital Increase Date, the Issuer will:
(i) deliver to each of the Representatives, the Capital Increase Bank and the share registrar of the Issuer, (a) a copy of the certified excerpt of the journal entry (Tagebuch) or a copy of the certified excerpt from the Commercial Register of the Canton of Basel-Stadt Zug evidencing the Underwritten Capital Increase, (b) a copy of the certified updated articles of association of the Issuer evidencing the Underwritten Capital Increase, (c) a copy of the Issuer’s book of uncertificated securities (Wertrechtebuch) evidencing Xxxxxxx Sachs & Co. LLC, acting in its own name but for the Underwriters accounts of the several Underwriters, as first holders holder of the Underwritten Securities, and (d) a copy of the share register (Aktienbuch) of the Issuer evidencing Xxxxxxx Xxxxx & Co. LLC, acting in its own name but for the Underwriters accounts of the several Underwriters, as shareholders shareholder with respect to the Underwritten Securities and the First Applicable Issuer Option Securities; and
(ii) take all steps necessary to ensure that the Underwritten Securities and the First Applicable Issuer Option Securities will be (a) duly recorded in an account of the Underwriters at DTC on the First Closing Date; and (b) freely transferable (subject to any applicable restrictions set forth in the articles of association of the Issuer) on the First Closing Date.
(d) The funds deposited in the Underwritten Capital Increase Account, Account shall, upon registration of the Underwritten Capital Increase pursuant to Section 3(b) and upon request by the Representatives, be transferred to a separate account of the Issuer with [●] UBS AG and shall, in such case, remain so deposited for the account of the Issuer until the earlier of:
(i) the issuance of the Underwritten Securities and the First Applicable Issuer Option Securities to Xxxxxxx Sachs & Co. LLC, acting in its own name but for the Underwriters accounts of the several Underwriters, as set forth in Section 3(c) on the First Closing Date; and
(ii) the date of receipt by the Representatives on behalf of the several Underwriters of the proceeds of (A) the sale of the Underwritten Securities and the First Applicable Issuer Option Securities as set forth in Sections 11(b), 11(c) or 11(e) or (B) the Capital Reduction as set forth in Section 11(d), as the case may be. Any fees payable to the Capital Increase Bank for any transfer of the funds deposited in the Underwritten Capital Increase Account pursuant to this Section 3(d) shall be payable directly to the Capital Increase Bank by the Issuer.
Appears in 1 contract
Capital Increase and Initial Subscription. (a) The RepresentativesXxxxxxx Sachs & Co. LLC, acting in their its own name but for the accounts of the several Underwriters, agreeagrees, on the basis of the representations, warranties and agreements herein contained, to:
(i) subscribe, on or by 6.00 no later than 5:00 a.m. (New York City Time) time on the Business Day preceding the day the Board shall pass a capital increase resolution (Erhöhungsbeschluss) (the latter date being the “Underwritten Capital Increase Date,” which is the second Business Day immediately preceding the First Closing Date), or such other time and date as agreed between the Issuer and the Representatives, for all of the (A) Underwritten Securities and [NUMBER] (B) Option Securities for which the Underwriters have exercised their option to purchase pursuant to Section 2(c) in a manner such that the delivery of such Option Securities shall be made at the First Closing Date (the “First Applicable Option Securities”) at the issue price (Ausgabebetrag) of CHF 0.03 per Security corresponding to the nominal value of each Security and to deliver the corresponding subscription form (Zeichnungsschein) to the Issuer XXXXXXX XX, Aeschenvorstadt 4, 4010 Basel, Switzerland, in the form of Exhibit A in original form (wet ink signed) by no later than 6.00 5:00 a.m. New York City time on the Underwritten Capital Increase Date; and
(ii) deposit or cause to be deposited, not later than 7:30 4:00 a.m. New York City time on the Business Day preceding the Underwritten Capital Increase Date, or such other time and date as agreed between the Issuer and the Representatives, same-day funds in Swiss francs free of bank charges for value in an amount corresponding to the aggregate nominal value of the Underwritten Securities and [NUMBER] First Applicable Option Securities (the “Underwritten Capital Increase Amount”) with UBS AG, Basel, Switzerland (the “Capital Increase Bank”), in a blocked account for such capital increase (Kapitaleinzahlungskonto), IBAN: XX00 00000000 000000X0X0000 0000 0000 00X0 X, made out to the Issuer’s name (the “Underwritten Capital Increase Account”), and to cause the Capital Increase Bank to issue and deliver a written confirmation of payment in original form of the Underwritten Capital Increase Amount to the Issuer XXXXXXX XX, Aeschenvorstadt 4, 4010 Basel, Switzerland no later than 2:30 5:00 a.m. New York City time on the Underwritten Capital Increase Date (or such other time and date as agreed between the Issuer and the Representatives).
(b) Upon completion of the items referred to in Section 3(a) and and, with respect to the actions pursuant to Section 3(b)(i)-(iii), in no event later than 6:00 1:00 p.m. New York City time on the Underwritten Capital Increase Date and, with respect to the action pursuant to Section 3(b)(iv), in no event later than 4:00 a.m. New York City time on the Business Day following the Underwritten Capital Increase Date, or such other time and date as agreed between the Issuer and the Representatives, the Board (or a committee or a Board member duly authorized by the Board) will:
(i) pass a capital increase resolution (Erhöhungsbeschluss) regarding the issuance of the Underwritten Securities and [NUMBER] the First Applicable Option Securities subscribed for pursuant to Section 3(a)(i) (the “Underwritten Capital Increase”);
(ii) adopt a report on the Underwritten Capital Increase (Kapitalerhöhungsbericht) and take note of the auditors’ report (Prüfungsbestätigung), all in accordance with Swiss statutory law;
(iii) resolve on the Underwritten Capital Increase and make all amendments to the articles of association of the Issuer necessary in connection with the Underwritten Capital Increase (Feststellungs- und Statutenänderungsbeschluss); and
(iv) file the documents necessary for the registration of the Underwritten Capital Increase with the Commercial Register of the Canton of Basel-StadtZug; provided, however, that if this Underwriting Agreement is terminated pursuant to Section 10 prior to the Issuer filing the relevant resolutions with the Commercial Register of the Canton of Basel-StadtZug, (a) the Issuer undertakes not to resolve on the Underwritten Capital Increase (if it has not already done so) or to file the relevant resolutions with the Commercial Register of the Canton of Basel-StadtZug, and (b) the Issuer shall immediately cause the Capital Increase Bank to release the Underwritten Capital Increase Amount in full to the RepresentativesXxxxxxx Xxxxx & Co. LLC, acting for the accounts of the several Underwriters, as soon as practicable; and the Underwriters understand Xxxxxxx Sachs & Co. LLC understands that the Capital Increase Bank may require confirmation, including from the UnderwritersXxxxxxx Xxxxx & Co. LLC, to release the Underwritten Capital Increase Amount and the Underwriters agree Xxxxxxx Sachs & Co. LLC agrees to deliver such confirmation.
(c) Immediately after the registration of the Underwritten Capital Increase in the Commercial Register of the Canton of Basel-Stadt Zug pursuant to Section 3(b), but in no event later than 6:00 9:30 a.m. New York City time on the Business Day following the Underwritten Capital Increase Date, the Issuer will:
(i) deliver to each of the Representatives, the Capital Increase Bank and the share registrar of the Issuer, (a) a copy of the certified excerpt of the journal entry (Tagebuch) or a copy of the certified excerpt from the Commercial Register of the Canton of Basel-Stadt Zug evidencing the Underwritten Capital Increase, (b) a copy of the certified updated articles of association of the Issuer evidencing the Underwritten Capital Increase, (c) a copy of the Issuer’s book of uncertificated securities (Wertrechtebuch) evidencing Xxxxxxx Xxxxx & Co. LLC, acting in its own name but for the Underwriters accounts of the several Underwriters, as first holders holder of the Underwritten Securities, and (d) a copy of the share register (Aktienbuch) of the Issuer evidencing Xxxxxxx Sachs & Co. LLC, acting in its own name but for the Underwriters accounts of the several Underwriters, as shareholders shareholder with respect to the Underwritten Securities and the First Applicable Option Securities; and
(ii) take all steps necessary to ensure that the Underwritten Securities and the First Applicable Option Securities will be (a) duly recorded in an account of the Underwriters at DTC on the First Closing Date; and (b) freely transferable (subject to any applicable restrictions set forth in the articles of association of the Issuer) on the First Closing Date.
(d) The funds deposited in the Underwritten Capital Increase Account, Account shall, upon registration of the Underwritten Capital Increase pursuant to Section 3(b) and upon request by the Representatives, be transferred to a separate account of the Issuer with [●] UBS AG and shall, in such case, remain so deposited for the account of the Issuer until the earlier of:
(i) the issuance of the Underwritten Securities and the First Applicable Option Securities to Xxxxxxx Xxxxx & Co. LLC, acting in its own name but for the Underwriters accounts of the several Underwriters, as set forth in Section 3(c) on the First Closing Date; and
(ii) the date of receipt by the Representatives on behalf of the several Underwriters of the proceeds of (A) the sale of the Underwritten Securities and the First Applicable Option Securities as set forth in Sections 11(b), 11(c) or 11(e) or (B) the Capital Reduction as set forth in Section 11(d), as the case may be. Any fees payable to the Capital Increase Bank for any transfer of the funds deposited in the Underwritten Capital Increase Account pursuant to this Section 3(d) shall be payable directly to the Capital Increase Bank by the Issuer.
Appears in 1 contract
Capital Increase and Initial Subscription. (a) The RepresentativesXxxxxxx Sachs & Co. LLC, acting in their its own name but for the accounts of the several Underwriters, agreeagrees, on the basis of the representations, warranties and agreements herein contained, to:
(i) subscribe, on or by 6.00 no later than 11:00 a.m. (New York City TimeZurich time) on the Business Day preceding the day the Board shall pass a capital increase resolution (Erhöhungsbeschluss) (the latter date being the “Underwritten Capital Increase Date,” which is the second Business Day immediately preceding the First Closing Date (the “Subscription Date”), or such other time and date as agreed between the Issuer and the Representatives, for all of the (A) Underwritten Securities and [NUMBER] (B) Option Securities for which the Underwriters have exercised their option to purchase pursuant to Section 2(c) in a manner such that the delivery of such Option Securities shall be made at the First Closing Date (the “First Applicable Option Securities”) at the issue price (Ausgabebetrag) of CHF 0.03 per Security corresponding to the nominal value of each Security and to deliver the corresponding subscription form (Zeichnungsschein) to the Issuer Xxxxxx Xxxx AG, Xxxxxxxxxxxxxx 000, 0000 Xxxxxx, Xxxxxxxxxxx, in the form of Exhibit A A1 in original form (wet ink signed) by no later than 6.00 a.m. New York City time 5:00 p.m. (Zurich time) on the Underwritten Capital Increase Subscription Date; and
(ii) deposit or cause to be deposited, not later than 7:30 a.m. New York City time 5:00 p.m. (Zurich time) on the Business Day preceding the Underwritten Capital Increase Subscription Date, or such other time and date as agreed between the Issuer and the Representatives, same-day funds in Swiss francs free of bank charges for value in an amount corresponding to the aggregate nominal value of the Underwritten Securities and [NUMBER] First Applicable Option Securities (the “Underwritten Capital Increase Amount”) with UBS Switzerland AG, Basel, Switzerland (the “Capital Increase Bank”), in a blocked account for such capital increase (Kapitaleinzahlungskonto), IBAN: XX00 00000000 000000X0X0000 0000 0000 00X0 X, made out to the Issuer’s name (the “Underwritten Capital Increase Account”), and to cause the Capital Increase Bank to issue and deliver a written confirmation of payment in original form of the Underwritten Capital Increase Amount to the Issuer Xxxxxx Xxxx AG, Xxxxxxxxxxxxxx 000, 0000 Xxxxxx, Xxxxxxxxxxx no later than 2:30 a.m. New York City time 5:00 p.m. (Zurich time) on the Underwritten Capital Increase Subscription Date (or such other time and date as agreed between the Issuer and the Representatives).
(b) Upon completion of the items referred to in Section 3(a) and in no event later than 6:00 10:00 a.m. New York City time (Zurich time) on the Underwritten Capital Increase First Closing Date, or such other time and date as agreed between the Issuer and the Representatives, the Board (or a committee or a Board member duly authorized by the Board) will:
(i) (to the extent not already passed) pass a capital increase resolution (Erhöhungsbeschluss) regarding the issuance of the Underwritten Securities and [NUMBER] the First Applicable Option Securities subscribed for pursuant to Section 3(a)(i) (the “Underwritten Capital Increase”);
(ii) adopt a report on the Underwritten Capital Increase (Kapitalerhöhungsbericht) and take note of the auditors’ report (Prüfungsbestätigung), all in accordance with Swiss statutory law;
(iii) resolve on the Underwritten Capital Increase and make all amendments to the articles of association of the Issuer necessary in connection with the Underwritten Capital Increase (Feststellungs- und Statutenänderungsbeschluss); and
(iv) file the documents necessary for the registration of the Underwritten Capital Increase with the Commercial Register of the Canton of Basel-StadtZug; provided, however, that if this Underwriting Agreement is terminated pursuant to Section 10 prior to the Issuer filing the relevant resolutions with the Commercial Register of the Canton of Basel-StadtZug, (a) the Issuer undertakes not to resolve on the Underwritten Capital Increase (if it has not already done so) or to file the relevant resolutions with the Commercial Register of the Canton of Basel-StadtZug, and (b) the Issuer shall immediately cause the Capital Increase Bank to release the Underwritten Capital Increase Amount in full to the RepresentativesXxxxxxx Xxxxx & Co. LLC, acting for the accounts of the several Underwriters, as soon as practicable; and the Underwriters understand Xxxxxxx Sachs & Co. LLC understands that the Capital Increase Bank may require confirmation, including from the UnderwritersXxxxxxx Xxxxx & Co. LLC, to release the Underwritten Capital Increase Amount and the Underwriters agree Xxxxxxx Sachs & Co. LLC agrees to deliver such confirmation.
(c) Immediately after the registration of the Underwritten Capital Increase in the Commercial Register of the Canton of Basel-Stadt Zug pursuant to Section 3(b), but in no event later than 6:00 9:30 a.m. (New York City time time) on the Business Day following the Underwritten Capital Increase First Closing Date, the Issuer will:
(i) deliver to each of the Representatives, the Capital Increase Bank and the share registrar of the Issuer, (a) a copy of the certified excerpt of the journal entry (Tagebuch) or a copy of the certified excerpt from the Commercial Register of the Canton of Basel-Stadt Zug evidencing the Underwritten Capital Increase, (b) a copy of the certified updated articles of association of the Issuer evidencing the Underwritten Capital Increase, (c) a copy of the Issuer’s book of uncertificated securities (Wertrechtebuch) evidencing Xxxxxxx Xxxxx & Co. LLC, acting in its own name but for the Underwriters accounts of the several Underwriters, as first holders holder of the Underwritten Securities, and (d) a copy of the share register (Aktienbuch) of the Issuer evidencing Xxxxxxx Sachs & Co. LLC, acting in its own name but for the Underwriters accounts of the several Underwriters, as shareholders shareholder with respect to the Underwritten Securities and the First Applicable Option Securities; and
(ii) take all steps necessary to ensure procure that the Underwritten Securities will be and the First Applicable Option Securities are (a) duly recorded in an account of the Underwriters at DTC on the First Closing DateDTC; and (b) freely transferable (subject to any applicable restrictions set forth in the articles of association of the Issuer) so as to ensure delivery of the Underwritten Securities and the First Applicable Option Securities on the First Closing DateDate in compliance with the Issuer’s obligations under Sections 2(b), 2(c) and 2(f).
(d) The funds deposited in the Underwritten Capital Increase Account, Account shall, upon registration of the Underwritten Capital Increase pursuant to Section 3(b) and upon request by the Representatives, be transferred to a separate account of the Issuer with [●] UBS Switzerland AG and shall, in such case, remain so deposited for the account of the Issuer until the earlier of:
(i) the issuance of the Underwritten Securities and the First Applicable Option Securities to Xxxxxxx Xxxxx & Co. LLC, acting in its own name but for the Underwriters accounts of the several Underwriters, as set forth in Section 3(c) on the First Closing Date; and
(ii) the date of receipt by the Representatives on behalf of the several Underwriters of the proceeds of (A) the sale of the Underwritten Securities and the First Applicable Option Securities as set forth in Sections 11(b), 11(c) or 11(e) or (B) the Capital Reduction as set forth in Section 11(d), as the case may be. Any fees payable to the Capital Increase Bank for any transfer of the funds deposited in the Underwritten Capital Increase Account pursuant to this Section 3(d) shall be payable directly to the Capital Increase Bank by the Issuer.
Appears in 1 contract
Capital Increase and Initial Subscription. (a) The Representatives, acting in their own name but for Company confirms that its board of directors (the accounts of the several Underwriters, agree“Board”) has, on or prior to the basis of the representationsdate hereof, warranties and agreements herein contained, taken appropriate resolutions to:
(i) subscribeincrease the Company’s share capital (Erhöhungsbeschluss) by issuing the Initial Securities out of the Company's authorized share capital (the “Initial Capital Increase”);
(ii) authorize the execution, on or delivery and performance of this Agreement and the transactions contemplated herein;
(iii) authorize certain members of the Board and the executive committee and/or other persons (each, an “Authorized Signatory”), acting jointly by 6.00 two, to execute this Agreement and any amendments and supplements thereto.
(b) The Company undertakes to cause Xxxxxxx Kantonalbank (the “Settlement Agent”) to
(i) subscribe for all the Initial Securities at the issue price (Ausgabebetrag) of CHF 0.05 per Initial Security corresponding to the nominal value for each Initial Security, and to deliver the corresponding executed subscription form (Zeichnungsschein) to the Company in the form of Exhibit B hereto in original form (wet-ink signed) by no later than 6:00 a.m. (New York City Timetime) on one business day prior to the Business Day preceding the day the Board shall pass a capital increase resolution (Erhöhungsbeschluss) (the latter date being the “Underwritten Capital Increase Date,” which is the second Business Day immediately preceding the First Closing Date), Time or such other time and date as agreed between the Issuer Company and the Representatives, for all of the Underwritten Securities and [NUMBER] Option Securities at the issue price (Ausgabebetrag) of CHF 0.03 per Security corresponding to the nominal value of each Security and to deliver the corresponding subscription form (Zeichnungsschein) to the Issuer in the form of Exhibit A in original form (wet ink signed) by no later than 6.00 a.m. New York City time on the Underwritten Capital Increase Date; and,
(ii) deposit or cause to be deposited, not later than 7:30 6:00 a.m. (New York City time on time) one business day prior to the Business Day preceding the Underwritten Capital Increase DateClosing Time, or such other date and time and date as agreed between the Issuer Company and the Representatives, same-day funds in Swiss francs free of bank charges for value in an the amount corresponding to the aggregate nominal value of the Underwritten Securities and [NUMBER] Option Securities CHF 285,750 (the “Underwritten Firm Capital Increase Amount”) with UBS AG, Basel, Switzerland Credit Suisse (Schweiz) AG (the “Capital Increase Bank”), in a blocked account for such capital increase (Kapitaleinzahlungskonto), IBAN: XX00 00000000 000000X0X, made out to the IssuerCompany’s name (the “Underwritten Capital Increase Account”)name, and to cause the Capital Increase Bank to issue and deliver to the Company a written confirmation of payment in original form (Kapitaleinzahlungsbestätigung) of the Underwritten Firm Capital Increase Amount to the Issuer no later than 2:30 10:00 a.m. (New York City time on time) one business day prior to the Underwritten Capital Increase Date (Closing Time or such other date and time and date as agreed between the Issuer Company and the Representatives; and
(iii) take all steps necessary to ensure that at the Closing Time the Initial Securities will be duly onward delivered by the Settlement Agent through the Company’s transfer agent to an account of SVB Securities, acting on behalf of the several Underwriters, at the Depository Trust Company (the “DTC”).
(bc) Upon completion receipt of the items documents referred to in Section 3(a3(b) and in no event later than 6:00 before 3:00 a.m. (New York City time time) on the Underwritten Capital Increase DateClosing Time, or such other time and date as agreed between the Issuer Company and the Representatives, the Board (or a committee or a Board member duly authorized by the Board) will:
(i) pass adopt a capital increase resolution report on the Initial Capital Increase (ErhöhungsbeschlussKapitalerhöhungsbericht) regarding the issuance of the Underwritten Securities and [NUMBER] Option Securities subscribed for pursuant to Section 3(a)(i) in accordance with Swiss law (the “Underwritten Capital Increase”article 652e CO);
(ii) adopt if statutory preemptive rights of shareholders need to be set aside, procure that a licensed auditor verifies the report on the Underwritten Initial Capital Increase (Kapitalerhöhungsbericht) in accordance with article 652f CO and take note of the auditors’ report confirms in writing that it is complete and accurate (Prüfungsbestätigung), all in accordance with Swiss statutory law;
(iii) resolve in the form of a duly notarized deed on the Underwritten Initial Capital Increase as set forth in article 652g CO and make all amendments to the articles of association of the Issuer Company necessary in connection with the Underwritten Initial Capital Increase (Feststellungs- Feststellungs-und Statutenänderungsbeschluss); and
(iv) promptly thereafter, but no later than 4:00 a.m. (New York City time) on the Closing Time, file the documents necessary for the registration of the Underwritten Initial Capital Increase with the Commercial Register of the Canton of Basel-Stadt; provided, however, that if this Underwriting Agreement is terminated pursuant to Section 10 7(q) or Section 11 prior to the Issuer Company filing the relevant resolutions with the Commercial Register of the Canton of Basel-Stadt, (a) the Issuer Company undertakes not to resolve on the Underwritten Initial Capital Increase (if it has not already done so) or and not to file the relevant resolutions with the Commercial Register of the Canton of Basel-Stadt, and (b) the Issuer shall immediately cause the Capital Increase Bank to release the Underwritten Capital Increase Amount in full to the Representatives, acting for the accounts of the several Underwriters, as soon as practicable; and the Underwriters understand that the Capital Increase Bank may require confirmation, including from the Underwriters, to release the Underwritten Capital Increase Amount and the Underwriters agree to deliver such confirmation.
(cd) Immediately after the registration of the Underwritten Initial Capital Increase in the Commercial Register of the Canton of Basel-Stadt pursuant to Section 3(b3(c), but in no event later than 6:00 9:30 a.m. (New York City time time) on the Business Day following the Underwritten Capital Increase DateClosing Time, the Issuer Company will:
(i) deliver by way of email to each of the Representatives, the Capital Increase Bank and the share registrar of the IssuerCompany, Xxxxxxxxx XX and Xxxxxxxx Xxxxx Xxxx XX pdf-copies of (aA) a copy of the certified excerpt of the journal entry (Tagebuch) or a copy of the certified excerpt extract from the Commercial Register of the Canton of Basel-Stadt evidencing confirming that the Underwritten Initial Capital IncreaseIncrease has been approved by the commercial register (cantonal and federal commercial register), has been registered in the Commercial Register (Tagesregister) and will be published in the Swiss Official Gazette of Commerce, (bB) a copy of the certified updated articles of association of the Issuer Company evidencing the Underwritten Initial Capital Increase, and (cC) a copy certificate of entry in the IssuerCompany’s book of uncertificated securities book (Wertrechtebuch) duly signed by the Company’s share registrar and evidencing the Underwriters Settlement Agent as first holders holder of the Underwritten Securities, and (d) a copy of the share register (Aktienbuch) of the Issuer evidencing the Underwriters as shareholders with respect to the Underwritten Securities; andInitial;
(ii) take all steps necessary to ensure that the Underwritten Initial Securities will be (aA) issued to the Settlement Agent, (B) duly recorded in as uncertificated securities (Wertrechte) on the books of the Company’s transfer agent and share registrar, (C) delivered on the Closing Time to an account of SVB Securities, acting on behalf of the Underwriters several Underwriters, at DTC pursuant to Section 3(b)(iii) above, in accordance with the provisions of the Swiss Federal Act on the First Closing Date; Intermediated Securities, and (bD) freely transferable (subject to any applicable restrictions set forth in the articles of association of the IssuerCompany) on the First Closing Date.
(d) The funds deposited Time in accordance with the Underwritten Capital Increase Account, shall, upon registration instructions of the Underwritten Capital Increase pursuant to Section 3(b) and upon request by the Representatives, be transferred to a separate account of the Issuer with [●] and shall, in such case, remain so deposited for the account of the Issuer until the earlier of:
(i) the issuance of the Underwritten Securities to the Underwriters as set forth in Section 3(c) on the First Closing Date; and
(ii) the date of receipt by the Representatives on behalf of the several Underwriters of the proceeds of (A) the sale of the Underwritten Securities as set forth in Sections 11(b), 11(c) or 11(e) or (B) the Capital Reduction as set forth in Section 11(d), as the case may be. Any fees payable to the Capital Increase Bank for any transfer of the funds deposited in the Underwritten Capital Increase Account pursuant to this Section 3(d) shall be payable directly to the Capital Increase Bank by the Issuer.
Appears in 1 contract
Capital Increase and Initial Subscription. (a) The RepresentativesXxxxxxx Sachs & Co. LLC, acting in their its own name but for the accounts of the several Underwriters, agreeagrees, on the basis of the representations, warranties and agreements herein contained, to:
(i) subscribe, on or by 6.00 no later than 11:00 a.m. (New York City TimeZurich time) on the Business Day preceding the day the Board shall pass a capital increase resolution (Erhöhungsbeschluss) (the latter date being the “Underwritten Capital Increase Date,” which is the second Business Day immediately preceding the First Closing Date (the “Subscription Date”), or such other time and date as agreed between the Issuer and the Representatives, for all of the (A) Underwritten Securities and [NUMBER] (B) Option Securities for which the Underwriters have exercised their option to purchase pursuant to Section 2(c) in a manner such that the delivery of such Option Securities shall be made at the First Closing Date (the “First Applicable Option Securities”) at the issue price (Ausgabebetrag) of CHF 0.03 per Security corresponding to the nominal value of each Security and to deliver the corresponding subscription form (Zeichnungsschein) to the Issuer Xxxxxx Xxxx AG, Xxxxxxxxxxxxxx 000, 0000 Xxxxxx, Xxxxxxxxxxx, in the form of Exhibit A A1 in original form (wet ink signed) by no later than 6.00 a.m. New York City time 5:00 p.m. (Zurich time) on the Underwritten Capital Increase Subscription Date; and
(ii) deposit or cause to be deposited, not later than 7:30 a.m. New York City time 5:00 p.m. (Zurich time) on the Business Day preceding the Underwritten Capital Increase Subscription Date, or such other time and date as agreed between the Issuer and the Representatives, same-day funds in Swiss francs free of bank charges for value in an amount corresponding to the aggregate nominal value of the Underwritten Securities and [NUMBER] First Applicable Option Securities (the “Underwritten Capital Increase Amount”) with UBS Switzerland AG, Basel, Switzerland (the “Capital Increase Bank”), in a blocked account for such capital increase (Kapitaleinzahlungskonto), IBAN: XX00 00000000 000000X0X, made out to the Issuer’s name (the “Underwritten Capital Increase Account”), and to cause the Capital Increase Bank to issue and deliver a written confirmation of payment in original form of the Underwritten Capital Increase Amount to the Issuer Xxxxxx Xxxx AG, Xxxxxxxxxxxxxx 000, 0000 Xxxxxx, Xxxxxxxxxxx no later than 2:30 a.m. New York City time 5:00 p.m. (Zurich time) on the Underwritten Capital Increase Subscription Date (or such other time and date as agreed between the Issuer and the Representatives).
(b) Upon completion of the items referred to in Section 3(a) and in no event later than 6:00 10:00 a.m. New York City time (Zurich time) on the Underwritten Capital Increase First Closing Date, or such other time and date as agreed between the Issuer and the Representatives, the Board (or a committee or a Board member duly authorized by the Board) will:
(i) (to the extent not already passed) pass a capital increase resolution (Erhöhungsbeschluss) regarding the issuance of the Underwritten Securities and [NUMBER] the First Applicable Option Securities subscribed for pursuant to Section 3(a)(i) (the “Underwritten Capital Increase”);
(ii) adopt a report on the Underwritten Capital Increase (Kapitalerhöhungsbericht) and take note of the auditors’ report (Prüfungsbestätigung), all in accordance with Swiss statutory law;
(iii) resolve on the Underwritten Capital Increase and make all amendments to the articles of association of the Issuer necessary in connection with the Underwritten Capital Increase (Feststellungs- und Statutenänderungsbeschluss); and
(iv) file the documents necessary for the registration of the Underwritten Capital Increase with the Commercial Register of the Canton of Basel-StadtZug; provided, however, that if this Underwriting Agreement is terminated pursuant to Section 10 prior to the Issuer filing the relevant resolutions with the Commercial Register of the Canton of Basel-StadtZug, (a) the Issuer undertakes not to resolve on the Underwritten Capital Increase (if it has not already done so) or to file the relevant resolutions with the Commercial Register of the Canton of Basel-StadtZug, and (b) the Issuer shall immediately cause the Capital Increase Bank to release the Underwritten Capital Increase Amount in full to the RepresentativesXxxxxxx Xxxxx & Co. LLC, acting for the accounts of the several Underwriters, as soon as practicable; and the Underwriters understand Xxxxxxx Sachs & Co. LLC understands that the Capital Increase Bank may require confirmation, including from the UnderwritersXxxxxxx Xxxxx & Co. LLC, to release the Underwritten Capital Increase Amount and the Underwriters agree Xxxxxxx Sachs & Co. LLC agrees to deliver such confirmation.
(c) Immediately after the registration of the Underwritten Capital Increase in the Commercial Register of the Canton of Basel-Stadt Zug pursuant to Section 3(b3(a)(ii), but in no event later than 6:00 9:30 a.m. (New York City time time) on the Business Day following the Underwritten Capital Increase First Closing Date, the Issuer will:
(i) deliver to each of the Representatives, the Capital Increase Bank and the share registrar of the Issuer, (a) a copy of the certified excerpt of the journal entry (Tagebuch) or a copy of the certified excerpt from the Commercial Register of the Canton of Basel-Stadt Zug evidencing the Underwritten Capital Increase, (b) a copy of the certified updated articles of association of the Issuer evidencing the Underwritten Capital Increase, (c) a copy of the Issuer’s book of uncertificated securities (Wertrechtebuch) evidencing Xxxxxxx Xxxxx & Co. LLC, acting in its own name but for the Underwriters accounts of the several Underwriters, as first holders holder of the Underwritten Securities, and (d) a copy of the share register (Aktienbuch) of the Issuer evidencing Xxxxxxx Sachs & Co. LLC, acting in its own name but for the Underwriters accounts of the several Underwriters, as shareholders shareholder with respect to the Underwritten Securities and the First Applicable Option Securities; and
(ii) take all steps necessary to ensure procure that the Underwritten Securities will be and the First Applicable Option Securities are (a) duly recorded in an account of the Underwriters at DTC on the First Closing DateDTC; and (b) freely transferable (subject to any applicable restrictions set forth in the articles of association of the Issuer) so as to ensure delivery of the Underwritten Securities and the First Applicable Option Securities on the First Closing DateDate in compliance with the Issuer’s obligations under Sections 2(b), 2(c) and 2(f).
(d) The funds deposited in the Underwritten Capital Increase Account, Account shall, upon registration of the Underwritten Capital Increase pursuant to Section 3(b3(a)(ii) and upon request by the Representatives, be transferred to a separate account of the Issuer with [●] UBS Switzerland AG and shall, in such case, remain so deposited for the account of the Issuer until the earlier of:
(i) the issuance of the Underwritten Securities and the First Applicable Option Securities to Xxxxxxx Xxxxx & Co. LLC, acting in its own name but for the Underwriters accounts of the several Underwriters, as set forth in Section 3(c) on the First Closing Date; and
(ii) the date of receipt by the Representatives on behalf of the several Underwriters of the proceeds of (A) the sale of the Underwritten Securities and the First Applicable Option Securities as set forth in Sections 11(b), 11(c) or 11(e) or (B) the Capital Reduction as set forth in Section 11(d), as the case may be. Any fees payable to the Capital Increase Bank for any transfer of the funds deposited in the Underwritten Capital Increase Account pursuant to this Section 3(d) shall be payable directly to the Capital Increase Bank by the Issuer.
Appears in 1 contract
