Conditions of the Obligation of the Underwriters. The obligations of the several Underwriters hereunder shall be subject to the accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Selling Stockholders contained herein, to the performance by each of the Company and the Selling Stockholders of its obligations hereunder, and to each of the following additional conditions: (a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Eastern time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative. (b) The Underwriters shall not have discovered and disclosed to the Company prior to or on such Delivery Date that (i) the Registration Statement, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading, and (ii) any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (c) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Company, shall have furnished to the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative. (d) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Selling Stockholders, shall have furnished to the Representative their written opinion, dated the First Delivery Date, in form and substance satisfactory to the Representative. (e) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative. (f) The Underwriters shall have received, on each of the date hereof and each Delivery Date, a letter dated the date hereof or such Delivery Date, as the case may be, in form and substance satisfactory to the Representative, from Ernst & Young LLP, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company and its consolidated subsidiaries contained in the Registration Statement, the Disclosure Package and the Prospectus, provided that the letter shall use a “cut-off date” not earlier than the third day prior to such Delivery Date. (g) The Company will, on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer and Chief Financial Officer, dated such Delivery Date, to the effect that: (i) The representations and warranties of the Company in this Agreement are true and correct, as if made on and as of the date thereof and provided that any reference therein to the First Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; 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 such Delivery Date; (ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act; (iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act; (iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and any amendments or supplements thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, did not and do not include any 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, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and (v) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock. (vi) On the First Delivery Date, there shall have been furnished to you, as Representative of the several Underwriters, a certificate or certificates, dated the First Delivery Date and addressed to you, signed by each Selling Stockholder or such Selling Stockholder’s Attorneys-in-Fact to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery Date. (i) Neither the Company nor any of the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Disclosure Package and the Prospectus any loss or interference with its business, otherwise than as set forth in the Disclosure Package and the Prospectus and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capitalization of the Company or change, or any development or event involving a prospective change, on the condition (financial or otherwise), business, properties, business prospects or results of operations of the Company and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representative so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Disclosure Package and the Prospectus. (i) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq, (ii) a suspension or material limitation in trading in the Company’s securities on the Nasdaq, (iii) a general moratorium on commercial banking activities declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus. (j) The Representative shall have received from each person listed on Schedule B hereto an executed lock-up letter agreement substantially to the effect set forth in the form attached hereto as Schedule A. (k) The Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. All opinions, certificates, letters and documents mentioned above or elsewhere in this Agreement shall be deemed to be compliance with the provisions hereof only if they are in form and substance satisfactory to counsel for the Underwriters.
Appears in 2 contracts
Samples: Underwriting Agreement (Kona Grill Inc), Underwriting Agreement (Kona Grill Inc)
Conditions of the Obligation of the Underwriters. The respective obligations of the several Underwriters hereunder shall be subject to the accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Selling Stockholders contained herein, to the performance by each of the Company and the Selling Stockholders of its their obligations hereunder, and to each of the following terms and additional conditions:
(a) The Prospectus shall have been timely filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c) hereof4(a); all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed complied with the Commission within the all filing requirements applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Eastern time, on any Issuer Free Writing Prospectus used or referred to after the date of this Agreementhereof; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated preventing or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings proceeding or examination for that such purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with to the reasonable satisfaction of the Representativewith.
(b) The Underwriters No Underwriter shall not have discovered and disclosed to the Company on or prior to or on such Delivery Date that (i) the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriterssuch counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, and (ii) any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Company, shall have furnished to the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.
(d) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Selling Stockholders, shall have furnished to the Representative their written opinion, dated the First Delivery Date, in form and substance satisfactory to the Representative.
(e) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.
(f) The Underwriters shall have received, on each of the date hereof and each Delivery Date, a letter dated the date hereof or such Delivery Date, as the case may be, in form and substance satisfactory to the Representative, from Ernst & Young LLP, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company and its consolidated subsidiaries contained in the Registration Statement, the Disclosure Package and the Prospectus, provided that the letter shall use a “cut-off date” not earlier than the third day prior to such Delivery Date.
(g) The Company will, on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer and Chief Financial Officer, dated such Delivery Date, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct, as if made on and as of the date thereof and provided that any reference therein to the First Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and any amendments or supplements thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, did not and do not include any 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, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(v) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vi) On the First Delivery Date, there shall have been furnished to you, as Representative of the several Underwriters, a certificate or certificates, dated the First Delivery Date and addressed to you, signed by each Selling Stockholder or such Selling Stockholder’s Attorneys-in-Fact to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery Date.
(i) Neither the Company nor any of the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Disclosure Package and the Prospectus any loss or interference with its business, otherwise than as set forth in the Disclosure Package and the Prospectus and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capitalization of the Company or change, or any development or event involving a prospective change, on the condition (financial or otherwise), business, properties, business prospects or results of operations of the Company and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representative so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(i) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq, (ii) a suspension or material limitation in trading in the Company’s securities on the Nasdaq, (iii) a general moratorium on commercial banking activities declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(j) The Representative shall have received from each person listed on Schedule B hereto an executed lock-up letter agreement substantially to the effect set forth in the form attached hereto as Schedule A.
(k) The Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. All opinions, certificates, letters and documents mentioned above or elsewhere in this Agreement shall be deemed to be compliance with the provisions hereof only if they are in form and substance satisfactory to counsel for the Underwriters.
Appears in 2 contracts
Samples: Underwriting Agreement (Rex Energy Corp), Underwriting Agreement (Rex Energy Corp)
Conditions of the Obligation of the Underwriters. The obligations of the several Underwriters hereunder shall be subject to the accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Selling Stockholders contained herein, to the performance by each of the Company and the Selling Stockholders of its obligations hereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act Regulations and in accordance with Section 4(c3(c) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Eastern time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives.
(b) The Underwriters shall not have discovered and disclosed to the Company prior to or on such Delivery Date that (i) the Registration Statement, any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, thereto contains an any untrue statement of a fact whichthat, in the opinion of counsel for the Underwriters, is material or omits to state a fact whichthat, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading, and (ii) any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLPPxxxxx Bxxxx, counsel for the Company, shall have furnished to the Representative Representatives their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.
(d) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Selling Stockholders, shall have furnished to the Representative their written opinion, dated the First Delivery Date, in form and substance satisfactory to the Representative.
(e) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.
(f) The Underwriters shall have received, on each of the date hereof and each Delivery Date, a letter dated the date hereof or such Delivery Date, as the case may be, in form and substance satisfactory to the Representative, from Ernst & Young LLP, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company and its consolidated subsidiaries contained in the Registration Statement, the Disclosure Package and the Prospectus, provided that the letter shall use a “cut-off date” not earlier than the third day prior to such Delivery Date.
(g) The Company will, on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer and Chief Financial Officer, dated such Delivery DateRepresentatives, to the effect that:
(i) The representations Company has been duly formed and warranties is validly existing and in good standing as a corporation with the State Department of Assessments and Taxation of Maryland, with the requisite power and authority to own and lease its properties and conduct its business as described in the Prospectus; and the Company is duly qualified to do business as a foreign company in this Agreement are true and correct, as if made on good standing in each jurisdiction and as of the date thereof dates listed on Exhibit A attached to such opinion (in rendering such opinion such counsel may state that its opinion that the Company is qualified to do business is based solely upon certificates provided by agencies of those states and provided that any reference therein is limited to the First Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; 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 meaning ascribed to such Delivery Date;certificates by each applicable state agency).
(ii) No Each Subsidiary of the Company has been duly incorporated or formed, as applicable, and is validly existing and in good standing as a corporation, limited liability corporation, limited partnership or general partnership, as applicable, under the laws of the jurisdiction of its incorporation or formation, as applicable, with the requisite power and authority (corporate, limited partnership or general partnership, as applicable) to own and lease its properties and conduct its business as described in the Prospectus; and each Subsidiary is duly qualified to do business as a foreign corporation, limited liability corporation, limited partnership or general partnership, as applicable, in good standing (except with respect to general partnerships) in each jurisdiction and as of the dates listed on Exhibit B attached to such opinion (in rendering such opinion such counsel may state that its opinion that the Company is qualified to do business is based solely upon certificates provided by agencies of those states and is limited to the meaning ascribed to such certificates by each applicable state agency) except as disclosed in the Prospectus, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s equity securities or from repaying to the Company or any other Subsidiary any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company or such assets to the Company or to any other Subsidiary.
(iii) The Company’s authorized shares of Common Stock are as set forth in the Prospectus. All of the outstanding shares of capital stock, limited partner interests or general partner interests, as applicable, of each Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable and are owned by the Company, directly or indirectly through Subsidiaries, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims and are free of any statutory preemptive rights or similar rights and, to such counsel’s knowledge, contractual pre-emptive rights; all of the shares of capital stock conform in all material respects to the descriptions thereof contained in the Prospectus; and, except as described in the Prospectus, to such counsel’s knowledge, there are no outstanding options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligation into or exchange any Capital Stock or other ownership interests in the Company or any security convertible or exchangeable or exercisable for Capital Stock or other ownership interests in the Company.
(iv) This Agreement has been duly authorized, executed and delivered by the Company.
(v) The Securities have been duly authorized by the Company and, when issued and delivered against payment therefor in accordance with this Agreement, will be validly issued, fully paid and nonassessable and free and clear of all liens, encumbrances, equities or claims. The issuance and sale of the Securities will not be subject to any preemptive or similar rights and the Securities will conform to the description thereof in the Prospectus.
(vi) The Registration Statement has been declared effective by the Commission under the Securities Act; to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the Securities Act and no proceedings for that such purpose have been instituted initiated or are pending or threatened under the Securities Act;
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending contemplated or threatened under by the Securities Act;
(iv) When the Registration Statement became effective Commission; and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, Prospectus and any amendments each amendment or supplements thereto contained all material information required supplement to be included therein by the Securities Act or the Exchange Act Registration Statement and the applicable rules Prospectus (expect in each case as to the financial statements and regulations of the Commission thereunderschedules and other financial data contained therein, as the case may be, and to which such counsel need express no opinion) comply as to form in all material respects conformed to with the applicable requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, did not and do not include any 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, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(v) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stockSecurities Act Regulations.
(vivii) On the First Delivery Date, there shall have been furnished to you, as Representative of the several Underwriters, a certificate or certificates, dated the First Delivery Date and addressed to you, signed by each Selling Stockholder or such Selling Stockholder’s Attorneys-in-Fact to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery Date.
(i) Neither the Company nor any of the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Disclosure Package and the Prospectus any loss or interference with its business, otherwise Other than as set forth in the Disclosure Package and the Prospectus and (ii) since the respective dates as of which information is given described in the Prospectus, there shall not have been are no contracts, agreements or understandings between the Company and any change in person granting such person the capitalization right to require the Company to file a registration statement under the Securities Act with respect to any shares of Common Stock or any other securities of the Company owned or change, to be owned by such person or any development or event involving a prospective change, on the condition (financial or otherwise), business, properties, business prospects or results of operations of to require the Company and the Subsidiaries, taken as a whole, otherwise than as set forth to include such Common Stock or contemplated other securities in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representative so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(i) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq, (ii) a suspension or material limitation in trading in the Company’s securities on the Nasdaq, (iii) a general moratorium on commercial banking activities declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(j) The Representative shall have received from each person listed on Schedule B hereto an executed lock-up letter agreement substantially to the effect set forth in the form attached hereto as Schedule A.
(k) The Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. All opinions, certificates, letters and documents mentioned above or elsewhere in this Agreement shall be deemed to be compliance with the provisions hereof only if they are in form and substance satisfactory to counsel for the Underwriters.the
Appears in 2 contracts
Samples: Underwriting Agreement (Warren Resources Inc), Underwriting Agreement (Warren Resources Inc)
Conditions of the Obligation of the Underwriters. The obligations of the several Underwriters hereunder shall be subject to the accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Selling Stockholders CareTrust contained herein, to the performance by each of the Company and the Selling Stockholders CareTrust of its obligations hereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c3(c) hereof; all material required to be filed by the Company CareTrust pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Eastern time, on the date of this Agreement; no . No stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated be pending or are, to the best knowledge of CareTrust, threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated be pending or are, to the best knowledge of CareTrust, threatened by the Commission; no order suspending the qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or are, to the best knowledge of CareTrust, threatened by the authorities of any such jurisdiction; all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives; and after the date hereof no amendment or supplement to the Registration Statement or the Prospectus relating to the Shares shall have been filed unless a copy thereof was first submitted to the Representatives and the Representatives did not object thereto.
(b) The Underwriters shall not have discovered and disclosed to the Company CareTrust prior to or on such Delivery Date that (i) the Registration Statement, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading, and (ii) any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Xxxxxx Xxxxxxx Xxxxxx O’Melveny & Brand, Xxxxx LLP, counsel for CareTrust and the CompanyOperating Partnership, shall have furnished to the Representative Representatives their written opinion and negative assurance letter, dated such Delivery Date, in form and substance satisfactory to the Representatives.
(d) Xxxxxxxx & Xxxxx LLP, counsel for CareTrust and the Operating Partnership, shall have furnished to the Representatives their written opinion regarding certain tax matters, dated such Delivery Date, in form and substance satisfactory to the Representatives.
(e) DLA Piper LLP (US), special Maryland counsel for CareTrust, shall have furnished to the Representatives their written opinion, dated such Delivery Date, in form and substance satisfactory to the RepresentativeRepresentatives.
(d) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Selling Stockholders, shall have furnished to the Representative their written opinion, dated the First Delivery Date, in form and substance satisfactory to the Representative.
(ef) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative Representatives their written opinion, dated such Delivery Date, in form and substance satisfactory to the RepresentativeRepresentatives.
(fg) The Underwriters shall have received, on each of the date hereof and each Delivery Date, a letter letters dated the date hereof or such Delivery Date, as the case may be, in form and substance satisfactory to the RepresentativeRepresentatives, from each of Ernst & Young LLP, LLP and Deloitte & Touche LLP containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company and its consolidated subsidiaries CareTrust, as applicable, contained in the Registration Statement, the Disclosure Package and the Prospectus, provided that the letter shall use a “cut-off date” not earlier than the third day prior to such Delivery Date.
(gh) The Company CareTrust and the Operating Partnership will, on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer an executive officer of CareTrust and Chief Financial Officeran executive officer of the Operating Partnership, dated such Delivery Date, to the effect that:
(i) The representations and warranties of each of CareTrust and the Company Operating Partnership, as applicable, in this Agreement are true and correct, as if made on and as of the date thereof and provided that any reference therein to the First Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; and each of CareTrust and the Company Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or are, to the best knowledge of CareTrust, threatened under the Securities Act;
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or are, to the best knowledge of CareTrust, threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and any amendments or supplements thereto thereto, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, did not and do not include any 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, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(v) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of CareTrust, the Company Operating Partnership or any Subsidiary that is material to CareTrust, the Company Operating Partnership and the Subsidiaries taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by CareTrust, the Company Operating Partnership or any Subsidiary that is material to CareTrust, the Company Operating Partnership and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company CareTrust on any class of its capital stock.
(vii) On CareTrust will, on each of the First date hereof and each Delivery Date, there shall have been furnished deliver to you, as Representative the Underwriters a certificate of the several Underwriters, a certificate or certificatesChief Financial Officer of CareTrust, dated the First Delivery Date and addressed to you, signed by each Selling Stockholder date hereof or such Selling Stockholder’s Attorneys-in-Fact Delivery Date, in form and substance satisfactory to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery DateRepresentatives.
(i) Neither CareTrust nor the Company Operating Partnership nor any of the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Disclosure Package and the Prospectus any loss or interference with its business, otherwise than as set forth in the Disclosure Package and the Prospectus and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capitalization of the Company CareTrust or change, or any development or event involving a prospective change, on the condition (financial or otherwise), business, properties, business prospects or results of operations of CareTrust, the Company Operating Partnership and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representative Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(ik) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on Nasdaq or the New York Stock Exchange, the American Stock Exchange or the Nasdaq, (ii) a suspension or material limitation in trading in the CompanyCareTrust’s securities on the Nasdaq, (iii) a general moratorium on commercial banking activities declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representative Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(jl) The Representative Representatives shall have received from each person listed on Schedule Exhibit B hereto an executed lock-up letter agreement substantially to the effect set forth in the form attached hereto as Schedule Exhibit A.
(km) The Company Each of CareTrust and the Operating Partnership shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein containedrequest. All opinions, certificates, letters and documents mentioned above or elsewhere in this Agreement shall be deemed to be compliance with the provisions hereof only if they are in form and substance satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of the Obligation of the Underwriters. The obligations of the several Underwriters hereunder to purchase and pay for the Firm Stock on the Closing Date and the Option Stock on the Second Closing Date shall be subject to the accuracy, when made and on each Delivery Date, of condition that the representations and warranties of made by the Company and the Selling Stockholders contained hereinShareholders herein are true and correct as of the date hereof and as of the respective Closing Dates, to the condition that the written statements of Company officers made pursuant to the provisions hereof are true and correct, and to the performance by each of the Company and the Selling Stockholders Shareholders of its their obligations hereunder, hereunder and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m.not later than 5:00 P.M., Eastern Cleveland time, on the date of this Agreement; , or at such later time as shall have been consented to by you, and prior to each Closing Date no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated instituted or threatened shall be pending, or to the knowledge of the Company or you, shall be contemplated by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative.
(b) The Underwriters You shall not have discovered and disclosed to advised the Company prior to or on such Delivery Date that (i) the Registration Statement, Statement or Prospectus or any amendment thereof or supplement thereto, thereto contains an untrue statement of a fact whichthat, in the reasonable opinion of Xxxxxx, Halter & Xxxxxxxx LLP, counsel for the Underwriters, is material material, or omits to state a fact whichthat, in the opinion of counsel for the Underwriterssuch counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, and (ii) any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Xxxxxx Xxxxxxx Xxxxxx & BrandYou shall have received as of each Closing Date (or prior thereto as indicated) the following:
(i) An opinion of each of (x) Xxxxx Day, LLP, outside counsel for to the Company, shall have furnished and (y) the General Counsel to the Representative their written opinionCompany, each dated such Delivery Datethe respective Closing Dates, substantially in form the forms attached hereto as Exhibits 1 and substance satisfactory 2, respectively, and with respect to the Representative.matters listed in such Exhibits;
(dii) Xxxxxx Xxxxxxx Xxxxxx Such opinion or opinions of Xxxxxx, Halter & Brand, Xxxxxxxx LLP, counsel for the Selling Stockholders, shall have furnished to the Representative their written opinion, dated the First Delivery Date, in form and substance satisfactory to the Representative.
(e) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.
(f) The Underwriters shall have received, on each of the date hereof and each Delivery Date, a letter dated the date hereof or such Delivery Daterespective Closing Dates, as the case may be, in form and substance satisfactory to the Representative, from Ernst & Young LLP, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements sufficiency of all corporate proceedings and certain financial information other legal matters relating to this Agreement, the validity of the Company and its consolidated subsidiaries contained in Stock, the Registration Statement, the Disclosure Package Prospectus, and other related matters as you may reasonably request, and the Prospectus, provided that the letter Company shall use a “cut-off date” not earlier than the third day prior have furnished to such Delivery Datecounsel such documents as they may request for the purpose of enabling them to pass upon such matters. In connection with such opinions, such counsel may rely on representations or certificates of officers of the Company.
(giii) The Company will, on each Delivery Date, deliver to the Underwriters a A certificate of its Chief Executive Officer the Company executed by the principal executive officer and Chief Financial Officerthe principal financial and accounting officer of the Company, dated such Delivery each respective Closing Date, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct, as if made on and as of the date thereof and provided that any reference therein to the First Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and any amendments or supplements thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, did not and do not include any 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, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(v) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vi) On the First Delivery Date, there shall have been furnished to you, as Representative of the several Underwriters, a certificate or certificates, dated the First Delivery Date and addressed to you, signed by each Selling Stockholder or such Selling Stockholder’s Attorneys-in-Fact to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery Date.
(i) Neither the Company nor any of the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Disclosure Package and the Prospectus any loss or interference with its business, otherwise than as set forth in the Disclosure Package and the Prospectus and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capitalization of the Company or change, or any development or event involving a prospective change, on the condition (financial or otherwise), business, properties, business prospects or results of operations of the Company and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representative so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(i) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq, (ii) a suspension or material limitation in trading in the Company’s securities on the Nasdaq, (iii) a general moratorium on commercial banking activities declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(j) The Representative shall have received from each person listed on Schedule B hereto an executed lock-up letter agreement substantially to the effect set forth in the form attached hereto as Schedule A.
(k) The Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. All opinions, certificates, letters and documents mentioned above or elsewhere in this Agreement shall be deemed to be compliance with the provisions hereof only if they are in form and substance satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Brush Engineered Materials Inc)
Conditions of the Obligation of the Underwriters. The obligations of the several Underwriters hereunder shall be subject to the accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Selling Stockholders CareTrust contained herein, to the performance by each of the Company and the Selling Stockholders CareTrust of its obligations hereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c3(c) hereof; all material required to be filed by the Company CareTrust pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company CareTrust has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Eastern time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives.
(b) The Underwriters shall not have discovered and disclosed to the Company CareTrust prior to or on such Delivery Date that (i) the Registration Statement, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading, and (ii) any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Xxxxxx Xxxxxxx Xxxxxx Xxxxxxxx & Brand, Xxxxx LLP, counsel for CareTrust and the CompanyOperating Partnership, shall have furnished to the Representative Representatives their written opinion and negative assurance letter, dated such Delivery Date, in form and substance satisfactory to the Representatives.
(d) Xxxxxxxx & Xxxxx LLP, counsel for CareTrust and the Operating Partnership, shall have furnished to the Representatives their written opinion regarding certain tax matters, dated such Delivery Date, in form and substance satisfactory to the Representatives.
(e) DLA Piper LLP (US), special Maryland counsel for CareTrust, shall have furnished to the Representatives their written opinion, dated such Delivery Date, in form and substance satisfactory to the RepresentativeRepresentatives.
(d) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Selling Stockholders, shall have furnished to the Representative their written opinion, dated the First Delivery Date, in form and substance satisfactory to the Representative.
(ef) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative Representatives their written opinion, dated such Delivery Date, in form and substance satisfactory to the RepresentativeRepresentatives.
(fg) The Underwriters shall have received, on each of the date hereof and each Delivery Date, a letter letters dated the date hereof or such Delivery Date, as the case may be, in form and substance satisfactory to the RepresentativeRepresentatives, from each of Ernst & Young LLP and Deloitte & Touche LLP, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company CareTrust and its consolidated subsidiaries Ensign Properties, contained in the Registration Statement, the Disclosure Package and the Prospectus, provided that the letter shall use a “cut-off date” not earlier than the third day prior to such Delivery Date.
(gh) The Company CareTrust and the Operating Partnership will, on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer an executive officer of CareTrust and Chief Financial Officerthe Operating Partnership, dated such Delivery Date, to the effect that:
(i) The representations and warranties of the Company each of CareTrust and Operating Partnership in this Agreement are true and correct, as if made on and as of the date thereof and provided that any reference therein to the First Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; and each of CareTrust and the Company Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and any amendments or supplements thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, did not and do not include any 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, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(v) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of CareTrust, the Company Operating Partnership or any Subsidiary that is material to CareTrust, the Company Operating Partnership and the Subsidiaries taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by CareTrust, the Company Operating Partnership or any Subsidiary that is material to CareTrust, the Company Operating Partnership and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company CareTrust on any class of its capital stock.
(vii) On CareTrust will, on each of the First date hereof and each Delivery Date, there shall have been furnished deliver to you, as Representative the Underwriters a certificate of the several Underwriters, a certificate or certificatesChief Financial Officer of CareTrust, dated the First Delivery Date and addressed to you, signed by each Selling Stockholder date hereof or such Selling Stockholder’s Attorneys-in-Fact to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery Date, in form and substance as is set forth on Exhibit C hereto.
(i) Neither CareTrust nor the Company Operating Partnership nor any of the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Disclosure Package and the Prospectus any loss or interference with its business, otherwise than as set forth in the Disclosure Package and the Prospectus and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capitalization of the Company CareTrust or change, or any development or event involving a prospective change, on the condition (financial or otherwise), business, properties, business prospects or results of operations of CareTrust, the Company Operating Partnership and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representative Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(ik) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on NASDAQ or the New York Stock Exchange, the American Stock Exchange or the Nasdaq, (ii) a suspension or material limitation in trading in the CompanyCareTrust’s securities on the NasdaqNASDAQ, (iii) a general moratorium on commercial banking activities declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States Xxxxxx Xxxxxx of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representative Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(jl) The Representative Representatives shall have received from each person listed on Schedule Exhibit B hereto an executed lock-up letter agreement substantially to the effect set forth in the form attached hereto as Schedule Exhibit A.
(km) The Company Each of CareTrust and the Operating Partnership shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein containedrequest. All opinions, certificates, letters and documents mentioned above or elsewhere in this Agreement shall be deemed to be compliance with the provisions hereof only if they are in form and substance satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of the Obligation of the Underwriters. The obligations of the several Underwriters hereunder shall be subject to the accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Selling Stockholders contained herein, to the performance by each of the Company and the Selling Stockholders of its obligations hereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c3(c) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Eastern time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative.
(b) The Underwriters shall not have discovered and disclosed to the Company prior to or on such Delivery Date that (i) the Registration Statement, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading, and (ii) any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Xxxxx Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Company, shall have furnished to the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.
(d) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Selling Stockholders, shall have furnished to the Representative their written opinion, dated the First Delivery Date, in form and substance satisfactory to the Representative.
(e) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.
(fe) The Underwriters shall have received, on each of the date hereof and each Delivery Date, a letter dated the date hereof or such Delivery Date, as the case may be, in form and substance satisfactory to the Representative, from Ernst & Young EisnerAmper LLP, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company and its consolidated subsidiaries contained in the Registration Statement, the Disclosure Package and the Prospectus, provided that the letter shall use a “cut-off date” not earlier than the third day prior to such Delivery Date.
(gf) The Company will, on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer and Chief Financial Officer, dated such Delivery Date, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct, as if made on and as of the date thereof and provided that any reference therein to the First Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and any amendments or supplements thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, did not and do not include any 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, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(v) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of the Company or any Subsidiary subsidiary that is material to the Company and the Subsidiaries its subsidiaries taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by the Company or any Subsidiary subsidiary that is material to the Company and the Subsidiaries its subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vi) On the First Delivery Date, there shall have been furnished to you, as Representative of the several Underwriters, a certificate or certificates, dated the First Delivery Date and addressed to you, signed by each Selling Stockholder or such Selling Stockholder’s Attorneys-in-Fact to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery Date.
(i) Neither the Company nor any of the Subsidiaries its subsidiaries shall have sustained since the date of the latest audited financial statements included in the Disclosure Package and the Prospectus any loss or interference with its business, otherwise than as set forth in the Disclosure Package and the Prospectus and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capitalization of the Company or change, or any development or event involving a prospective change, on the condition (financial or otherwise), business, properties, business prospects or results of operations of the Company and the Subsidiariesits subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representative so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(ih) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the American Stock Exchange NYSE or the NasdaqNasdaq Stock Market, (ii) a suspension or material limitation in trading in the Company’s securities on the NasdaqNYSE, (iii) a general moratorium on commercial banking activities declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(ji) The Representative shall have received from each person listed on Schedule Exhibit B hereto an executed lock-up letter agreement substantially to the effect set forth in the form attached hereto as Schedule Exhibit A.
(j) The Representative shall have received from the Company, on each of the date hereof and each Delivery Date, a certificate of the Chief Financial Officer of the Company substantially to the effect set forth in the form attached hereto as Exhibit C.
(k) The Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein containedrequest. All opinions, certificates, letters and documents mentioned above or elsewhere in this Agreement shall be deemed to be compliance with the provisions hereof only if they are in form and substance satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of the Obligation of the Underwriters. The respective obligations of the several Underwriters hereunder shall be subject to the accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Selling Stockholders contained herein, to the performance by each of the Company and the Selling Stockholders of its obligations hereunder, and to each of the following terms and additional conditions:
(a) The Prospectus shall have been timely filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c3(a) hereofhereto; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed complied with the Commission within the all filing requirements applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Eastern time, on any Issuer Free Writing Prospectus used or referred to after the date of this Agreementhereof; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated preventing or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings proceeding or examination for that such purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with to the reasonable satisfaction of the Representativewith.
(b) The Underwriters No Underwriter shall not have discovered and disclosed to the Company on or prior to or on such Delivery Date that (i) the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriterssuch counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and (ii) any validity of this Agreement, the Securities, the Registration Statement, each preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in the opinion of all material respects to counsel for the Underwriters, is material or omits to state a fact which, in and the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Company, Company shall have furnished to the Representative their such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fulbright & Xxxxxxxx L.L.P. shall have furnished to KBCM its written opinion, as counsel to the Company, addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to KBCM, substantially in the Representative.form attached hereto as Exhibit A.
(de) Xxxxxx Xxxxxxx KBCM shall have received from Xxxxxx & Brand, LLPXxxxxx L.L.P., counsel for the Selling StockholdersUnderwriters, such opinion or opinions, dated such Delivery Date, with respect to the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as KBCM may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the Representative their written opinionpurpose of enabling them to pass upon such matters.
(f) At the time of execution of this Agreement, dated the First Delivery DateKBCM shall have received from each of Malin, Xxxxxxxx & Company, LLP and KPMG LLP a letter, in form and substance satisfactory to the Representative.
(e) Xxxxx DayKBCM, counsel for the Underwriters, shall have furnished addressed to the Representative their written opinion, Underwriters and dated such Delivery Date, the date hereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in form and substance satisfactory compliance with the applicable requirements relating to the Representative.
qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (fii) The Underwriters shall have receivedstating, on each as of the date hereof and each Delivery Date(or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package, as of a letter dated date not more than three days prior to the date hereof or hereof), the conclusions and findings of such Delivery Date, as the case may be, in form and substance satisfactory firm with respect to the Representative, from Ernst & Young LLP, containing statements financial information and information of the type other matters ordinarily included in covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(g) With respect to the letter of each of Malin, Xxxxxxxx & Company, LLP and KPMG LLP referred to in the preceding paragraph and delivered to KBCM concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to KBCM a letter (the “bring-down letter”) of each such accountants, addressed to the Underwriters and dated such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(h) At the time of execution of this Agreement, KBCM shall have received from Netherland, Xxxxxx & Associates, Inc. an initial letter (the “initial expert letter”), in form and substance satisfactory to KBCM, addressed to the Underwriters and dated the date hereof and a subsequent letter dated as of the Company and its consolidated subsidiaries contained in the Registration StatementDelivery Date, the Disclosure Package and the Prospectus, provided that the which such letter shall use cover the period from any initial expert letter to the Delivery Date, stating the conclusions and findings of such firm with respect to the Company’s oil and gas reserves as is customary to underwriters in connection with registered public offerings.
(i) The Company shall have furnished to KBCM a “cut-off date” not earlier than the third day prior to certificate, dated such Delivery Date.
(g) The Company will, on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer and Interim Chief Financial Officer, dated such Delivery Date, to the effect Officer stating that:
(i) The representations representations, warranties and warranties agreements of the Company in Section 1 of this Agreement are true and correct, as if made correct on and as of the date thereof and provided that any reference therein to the First such Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; Date, and the Company has complied with all the its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and issued; and, to the knowledge of such officers, no proceedings or examination for that purpose have been instituted or are pending or threatened under the Securities Act;threatened; and
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose They have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and any amendments or supplements thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package and Package, and, in their opinion, (A) (1) the Registration Statement, as of its effective date, (2) the Prospectus, as of its date and any amendments on the applicable Delivery Date, or supplements thereto(3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not include contain any untrue statement of a material fact or and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements thereintherein (except in the case of the Registration Statement, in the light of the circumstances under which they were made, ) not misleading; and, misleading and (B) since the most recent effective date of the Registration Statement, there no event has occurred no event required to be that should have been set forth in an a supplement or amendment to the Registration Statement, the Prospectus or supplemented any Issuer Free Writing Prospectus which that has not been so set forth; and;
(vj) Subsequent The Company shall have furnished to KBCM certificates, dated, respectively, the respective dates as date hereof and each Delivery Date, of which information is given the Company’s Chief Executive Officer and Interim Chief Financial Officer in the Registration Statement, the Disclosure Package and Prospectus, except as form set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vi) On the First Delivery Date, there shall have been furnished to you, as Representative of the several Underwriters, a certificate or certificates, dated the First Delivery Date and addressed to you, signed by each Selling Stockholder or such Selling Stockholder’s Attorneys-in-Fact to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery DateExhibit C hereto.
(i) Neither the Company nor any of the Subsidiaries shall have sustained sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package and the Prospectus Package, any loss or interference with its businessbusiness from fire, otherwise than as set forth in the Disclosure Package and the Prospectus and explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since subsequent to the respective dates as of which such information is given in the Prospectus, Preliminary Prospectus there shall not have been any change in the capitalization capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development or event involving a prospective change, on in or affecting the condition (financial or otherwise), businessresults of operations, stockholders’ equity, properties, management, business or prospects or results of operations of the Company and the Subsidiaries, its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is is, in the judgment of the Representative KBCM, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares Securities being delivered on such Delivery Date on the terms and in the manner contemplated in each of the Pricing Disclosure Package and the Prospectus.
(il) On or after Subsequent to the date hereof, execution and delivery of this Agreement there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the Nasdaq Global Market or the American Stock Exchange or in the Nasdaqover-the-counter market shall have been suspended or materially limited, (ii) a suspension or material limitation in trading in any securities of the Company’s securities Company on any exchange or in the Nasdaqover-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (iii) a general banking moratorium on commercial banking activities shall have been declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United Statesauthorities, (iv) the outbreak or United States shall have become engaged in hostilities that were not occurring as of the execution and delivery of this Agreement, there shall have been an escalation of in hostilities involving the United States that were occurring prior to the execution and delivery of this Agreement or the there shall have been a declaration by the United States of a national emergency or war by the United States or (v) the occurrence of any other calamity or crisis or any there shall have occurred such a material adverse change in financialgeneral economic, political or economic financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States or elsewhereshall be such), if the effect of any such event specified in clause (iv) or (v) as to make it, in the judgment of the Representative makes it KBCM, impracticable or inadvisable to proceed with the public offering or the delivery of the Shares Securities being delivered on such Delivery Date on the terms and in the manner contemplated in each of the Pricing Disclosure Package and the Prospectus.
(jm) The Representative Nasdaq shall have received from each person listed on Schedule B hereto an executed lockapproved the Securities for listing, subject only to official notice of issuance.
(n) The Lock-up letter agreement substantially to Up Agreements between KBCM and the effect officers and directors of the Company set forth on Exhibit D, delivered to KBCM on or before the date of this Agreement, shall be in the form attached hereto as Schedule A.full force and effect on such Delivery Date.
(ko) The Company shall have furnished to On the Representative such further informationapplicable Delivery Date, certificates and documents as the Representative may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any warranties of the conditions or agreementsCompany shall be true, herein containedaccurate and correct as of such Delivery Date. All opinions, certificatesletters, letters evidence and documents certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of the Obligation of the Underwriters. The respective obligations of the several Underwriters hereunder shall be subject to the accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Selling Stockholders contained herein, to the performance by each of the Company and the Selling Stockholders of its obligations hereunder, and to each of the following terms and additional conditions:
(a) The Prospectus shall have been timely filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c3(a) hereofhereto; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed complied with the Commission within the all filing requirements applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Eastern time, on any Issuer Free Writing Prospectus used or referred to after the date of this Agreementhereof; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated preventing or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings proceeding or examination for that such purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with to the reasonable satisfaction of the Representativewith.
(b) The Underwriters No Underwriter shall not have discovered and disclosed to the Company on or prior to or on such Delivery Date that (i) the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriterssuch counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and (ii) any validity of this Agreement, the Securities, the Registration Statement, each preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in the opinion of all material respects to counsel for the Underwriters, is material or omits to state a fact which, in and the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Company, Company shall have furnished to the Representative their such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fulbright & Xxxxxxxx L.L.P. shall have furnished to KBCM its written opinion, as counsel to the Company, addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to KBCM, substantially in the Representative.form attached hereto as Exhibit A.
(de) Xxxxxx Xxxxxxx KBCM shall have received from Xxxxxx & Brand, LLPXxxxxx L.L.P., counsel for the Selling StockholdersUnderwriters, such opinion or opinions, dated such Delivery Date, with respect to the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as KBCM may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the Representative their written opinionpurpose of enabling them to pass upon such matters.
(f) At the time of execution of this Agreement, dated the First Delivery DateKBCM shall have received from Malin, Xxxxxxxx & Company, LLP a letter, in form and substance satisfactory to the Representative.
(e) Xxxxx DayKBCM, counsel for the Underwriters, shall have furnished addressed to the Representative their written opinion, Underwriters and dated such Delivery Date, the date hereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in form and substance satisfactory compliance with the applicable requirements relating to the Representative.
qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (fii) The Underwriters shall have receivedstating, on each as of the date hereof and each Delivery Date(or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package, as of a letter dated date not more than three days prior to the date hereof or hereof), the conclusions and findings of such Delivery Date, as the case may be, in form and substance satisfactory firm with respect to the Representative, from Ernst & Young LLP, containing statements financial information and information of the type other matters ordinarily included in covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(g) With respect to the letter of Malin, Xxxxxxxx & Company, LLP referred to in the preceding paragraph and delivered to KBCM concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to KBCM a letter (the “bring-down letter”) of such accountants, addressed to the Underwriters and dated such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information of other matters covered by the Company initial letter and its consolidated subsidiaries contained (iii) confirming in all material respects the conclusions and findings set forth in the Registration Statement, the Disclosure Package and the Prospectus, provided that the letter shall use a “cut-off date” not earlier than the third day prior to such Delivery Dateinitial letter.
(gh) At the time of execution of this Agreement, KBCM shall have received from Netherland, Xxxxxx & Associates, Inc. an initial letter (the “initial expert letter”), in form and substance satisfactory to KBCM, addressed to the Underwriters and dated the date hereof and a subsequent letter dated as of the Delivery Date, which such letter shall cover the period from any initial expert letter to the Delivery Date, stating the conclusions and findings of such firm with respect to the Company’s oil and gas reserves as is customary to underwriters in connection with registered public offerings.
(i) The Company will, on each Delivery Date, deliver shall have furnished to the Underwriters KBCM a certificate of its Chief Executive Officer and Chief Financial Officercertificate, dated such Delivery Date, to the effect of its President and Chief Executive Officer and its Chief Financial Officer stating that:
(i) The representations representations, warranties and warranties agreements of the Company in Section 1 of this Agreement are true and correct, as if made correct on and as of the date thereof and provided that any reference therein to the First such Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; Date, and the Company has complied with all the its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and issued; and, to the knowledge of such officers, no proceedings or examination for that purpose have been instituted or are pending or threatened under the Securities Act;threatened; and
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose They have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and any amendments or supplements thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package and Package, and, in their opinion, (A) (1) the Registration Statement, as of its effective date, (2) the Prospectus, as of its date and any amendments on the applicable Delivery Date, or supplements thereto(3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not include contain any untrue statement of a material fact or and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements thereintherein (except in the case of the Registration Statement, in the light of the circumstances under which they were made, ) not misleading; and, misleading and (B) since the most recent effective date of the Registration Statement, there no event has occurred no event required to be that should have been set forth in an a supplement or amendment to the Registration Statement, the Prospectus or supplemented any Issuer Free Writing Prospectus which that has not been so set forth; and
(v) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vi) On the First Delivery Date, there shall have been furnished to you, as Representative of the several Underwriters, a certificate or certificates, dated the First Delivery Date and addressed to you, signed by each Selling Stockholder or such Selling Stockholder’s Attorneys-in-Fact to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery Date.;
(i) Neither the Company nor any of the Subsidiaries shall have sustained sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package and the Prospectus Package, any loss or interference with its businessbusiness from fire, otherwise than as set forth in the Disclosure Package and the Prospectus and explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since subsequent to the respective dates as of which such information is given in the Prospectus, Preliminary Prospectus there shall not have been any change in the capitalization capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development or event involving a prospective change, on in or affecting the condition (financial or otherwise), businessresults of operations, stockholders’ equity, properties, management, business or prospects or results of operations of the Company and the Subsidiaries, its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is is, in the judgment of the Representative KBCM, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares Securities being delivered on such Delivery Date on the terms and in the manner contemplated in each of the Pricing Disclosure Package and the Prospectus.
(ik) On or after Subsequent to the date hereof, execution and delivery of this Agreement there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the Nasdaq Global Market or the American Stock Exchange or in the Nasdaqover-the-counter market shall have been suspended or materially limited, (ii) a suspension or material limitation in trading in any securities of the Company’s securities Company on any exchange or in the Nasdaqover-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (iii) a general banking moratorium on commercial banking activities shall have been declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United Statesauthorities, (iv) the outbreak or United States shall have become engaged in hostilities that were not occurring as of the execution and delivery of this Agreement, there shall have been an escalation of in hostilities involving the United States that were occurring prior to the execution and delivery of this Agreement or the there shall have been a declaration by the United States of a national emergency or war by the United States or (v) the occurrence of any other calamity or crisis or any there shall have occurred such a material adverse change in financialgeneral economic, political or economic financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States or elsewhereshall be such), if the effect of any such event specified in clause (iv) or (v) as to make it, in the judgment of the Representative makes it KBCM, impracticable or inadvisable to proceed with the public offering or the delivery of the Shares Securities being delivered on such Delivery Date on the terms and in the manner contemplated in each of the Pricing Disclosure Package and the Prospectus.
(jl) The Representative Nasdaq shall have received from each person listed on Schedule B hereto an executed lockapproved the Securities for listing, subject only to official notice of issuance.
(m) The Lock-up letter agreement substantially to Up Agreements between KBCM and the effect officers and directors of the Company set forth on Exhibit C, delivered to KBCM on or before the date of this Agreement, shall be in the form attached hereto as Schedule A.full force and effect on such Delivery Date.
(kn) The Company shall have furnished to On the Representative such further informationapplicable Delivery Date, certificates and documents as the Representative may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any warranties of the conditions or agreementsCompany shall be true, herein containedaccurate and correct as of such Delivery Date. All opinions, certificatesletters, letters evidence and documents certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of the Obligation of the Underwriters. The obligations of the several Underwriters hereunder to purchase and pay for the Firm Stock on the Closing Date and the Option Stock on the Second Closing Date shall be subject to the accuracy, when made and on each Delivery Date, of condition that the representations and warranties made by the Company herein are true and correct as of the date hereof and as of the respective Closing Dates, to the condition that the written statements of Company officers made pursuant to the provisions hereof are true and the Selling Stockholders contained hereincorrect, and to the performance by each of the Company and the Selling Stockholders of its their obligations hereunder, hereunder and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m.not later than 5:00 P.M., Eastern Cleveland time, on the date of this Agreement; , or at such later time as shall have been consented to by you in writing, and prior to each Closing Date no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated instituted or threatened shall be pending, or to the knowledge of the Company or you, shall be contemplated by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative.
(b) The Underwriters You shall not have discovered and disclosed to advised the Company prior to or on such Delivery Date that (i) the Registration Statement, Statement or Prospectus or any amendment thereof or supplement thereto, thereto contains an untrue statement of a fact which, in the reasonable opinion of Powell, Goldstein, Frazer & Murphy LLP, counsel for the Underwriters, is material, or omixx xx staxx x xact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriterssuch counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, and (ii) any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Company, You shall have furnished to received as of each Closing Date (or prior thereto as indicated) the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.
(d) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Selling Stockholders, shall have furnished to the Representative their written opinion, dated the First Delivery Date, in form and substance satisfactory to the Representative.
(e) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.
(f) The Underwriters shall have received, on each of the date hereof and each Delivery Date, a letter dated the date hereof or such Delivery Date, as the case may be, in form and substance satisfactory to the Representative, from Ernst & Young LLP, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company and its consolidated subsidiaries contained in the Registration Statement, the Disclosure Package and the Prospectus, provided that the letter shall use a “cut-off date” not earlier than the third day prior to such Delivery Date.
(g) The Company will, on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer and Chief Financial Officer, dated such Delivery Date, to the effect thatfollowing:
(i) The representations and warranties An opinion of the Company in this Agreement are true and correctBass, as if made on and as of the date thereof and provided that any reference therein to the First Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and any amendments or supplements thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, did not and do not include any 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, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(v) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vi) On the First Delivery Date, there shall have been furnished to you, as Representative of the several Underwriters, a certificate or certificatesBerry & Sims PLC, dated the First Delivery Date and addressed to yourespective Closing Dates, signed by each Selling Stockholder or such Selling Stockholder’s Attorneys-in-Fact to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery Date.
(i) Neither the Company nor any of the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Disclosure Package and the Prospectus any loss or interference with its business, otherwise than as set forth in the Disclosure Package and the Prospectus and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capitalization of the Company or change, or any development or event involving a prospective change, on the condition (financial or otherwise), business, properties, business prospects or results of operations of the Company and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representative so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(i) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq, (ii) a suspension or material limitation in trading in the Company’s securities on the Nasdaq, (iii) a general moratorium on commercial banking activities declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(j) The Representative shall have received from each person listed on Schedule B hereto an executed lock-up letter agreement substantially to the effect set forth in the form attached hereto as Schedule A.
(k) The Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. All opinions, certificates, letters and documents mentioned above or elsewhere in this Agreement shall be deemed to be compliance with the provisions hereof only if they are in form and substance satisfactory to counsel for the Underwriters.thxx:
Appears in 1 contract
Samples: Underwriting Agreement (Pinnacle Financial Partners Inc)
Conditions of the Obligation of the Underwriters. The obligations of the several Underwriters hereunder to purchase and pay for the Firm Stock on the Closing Date and the Option Stock on the Second Closing Date shall be subject to the accuracy, when made and on each Delivery Date, of condition that the representations and warranties of made by the Company and the Selling Stockholders contained hereinShareholder herein are true and correct as of the date hereof and as of the respective Closing Dates, to the condition that the written statements of Company officers and the Selling Shareholder made pursuant to the provisions hereof are true and correct, and to the performance by each of the Company and the Selling Stockholders Shareholder of its their respective obligations hereunder, hereunder and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m.not later than 5:00 P.M., Eastern Cleveland time, on the date of this Agreement; , or at such later time as shall have been consented to by you, and prior to each Closing Date no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated instituted or threatened shall be pending, or to the knowledge of the Company or you, shall be contemplated by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative.
(b) The Underwriters You shall not have discovered and disclosed to advised the Company prior to or on such Delivery Date and the Selling Shareholder that (i) the Registration Statement, Statement or Prospectus or any amendment thereof or supplement thereto, thereto contains an untrue statement of a fact which, in the reasonable opinion of Calfxx, Xxlter & Grisxxxx XXX, counsel for the Underwriters, is material material, or omits to state a fact which, in the opinion of counsel for the Underwriterssuch counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, and (ii) any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Company, You shall have furnished to received as of each Closing Date (or prior thereto as indicated) the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.following:
(di) Xxxxxx Xxxxxxx Xxxxxx An opinion of Bakex & Brand, LLP, counsel for the Selling Stockholders, shall have furnished to the Representative their written opinionXostxxxxx XXX, dated the First Delivery Date, in form and substance satisfactory to the Representative.
(e) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.
(f) The Underwriters shall have received, on each of the date hereof and each Delivery Date, a letter dated the date hereof or such Delivery Date, as the case may be, in form and substance satisfactory to the Representative, from Ernst & Young LLP, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company and its consolidated subsidiaries contained in the Registration Statement, the Disclosure Package and the Prospectus, provided that the letter shall use a “cut-off date” not earlier than the third day prior to such Delivery Date.
(g) The Company will, on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer and Chief Financial Officer, dated such Delivery Daterespective Closing Dates, to the effect that:
(iaa) The representations Company has been duly organized and warranties is validly existing as a corporation in good standing under the laws of Ohio with corporate power and authority to own its properties and conduct its business as described in the Prospectus. Each of the Company's subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of its respective jurisdiction of incorporation, with power and authority to own and lease its properties and conduct its respective business.
(bb) The authorized capital stock of the Company is as set forth under "Capitalization" in the Prospectus; all issued and outstanding Common Shares of the Company (including the Stock to be sold by the Selling Shareholder hereunder) have been duly authorized and validly issued and are fully paid and nonassessable, and, to the best of the knowledge of such counsel, are free of preemptive rights of stockholders, rights of first refusal or similar rights. To the best knowledge of such counsel, except as described in the Prospectus, there are no outstanding options, warrants or other rights calling for the issuance of and there are no commitments, plans or arrangements to issue any shares of capital stock of the Company or any security convertible or exchangeable or exercisable for capital stock of the Company, and there are no holders of securities of the Company who, by reason of the filing of the Registration Statement, have the right (and have not waived such right) to request the Company to include in the Registration Statement securities signed by them, other than such rights as have been satisfied by the inclusion of securities in the Registration Statement.
(cc) The Common Shares of the Company to be issued and sold by the Company hereunder have been duly authorized, and, when issued, delivered and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable. No preemptive rights of security holders of the Company exist with respect to the issuance and sale of the stock by the Company pursuant to this Agreement. The Common Shares of the Company conform to the description thereof contained in the Prospectus and the certificates for the Common Shares of the Company (including the Stock) are in due and legal form under Ohio law.
(dd) The Company has the corporate power and authority to enter into and perform this Agreement, and to issue and deliver the Stock as provided herein. The execution, delivery and performance of this Agreement are true by the Company and correct, as if made on and as the Selling Shareholder have been duly authorized by all necessary action of the date Company and the Selling Shareholder. This Agreement constitutes the legal, valid and binding obligation of the Company and the Selling Shareholder, enforceable in accordance with its terms, except as rights to indemnity may be limited by public policy and applicable federal or state securities laws and except as enforcement thereof and provided that any reference therein may be limited by bankruptcy, insolvency or other laws of general application affecting the enforcement of creditors' rights or by general principles of equity.
(ee) The Registration Statement has become effective under the Act and, to the First Delivery Date shall be deemed to refer to best of the applicable Delivery Date on which knowledge of such certificate is delivered; 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 such Delivery Date;
(ii) No counsel, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened contemplated under the Securities Act;
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the . The Registration Statement and the Prospectus, and any amendments each amendment thereof or supplements supplement thereto contained (except for the financial statements and schedules and financial and statistical information included therein as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Rules and Regulations (except for the financial statements and schedules and financial and statistical information included therein as to which such counsel need express no opinion); the descriptions in the Registration Statement and the Prospectus of the Common Shares, statutes, regulations, leases, employee benefit plans, contracts and other documents are materially accurate and fairly present the information required to be included therein shown; and such counsel does not know of any legal or governmental proceedings which are required by the Securities Act or the Exchange Act and the applicable rules Rules and regulations Regulations to be described in the Prospectus and which are not described as so required, or of any leases, contracts or other documents of a character which are required by the Act and the Rules and Regulations to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement and which are not described and/or filed as so required.
(ff) The consummation of the Commission thereundertransactions herein contemplated and the fulfillment of the terms hereof will not result in a breach of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of its subsidiaries is a party and of which such counsel has knowledge, or any will, trust (constructive or other), agreement, judgment, decree, or other instrument to which the Selling Shareholder is a party or by which the Selling Shareholder is bound and of which such counsel has knowledge, or the Articles of Incorporation or Code of Regulations of the Company, or the organizational documents of any of its subsidiaries, or, to the knowledge of such counsel, any order, rule or regulation applicable to the Company or any of its subsidiaries or the Selling Shareholder of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Company or any of its subsidiaries or the Selling Shareholder or the properties of any of them, except for such breaches or defaults as will not have a material adverse effect on the consummation of the transactions herein contemplated and the fulfillment of the terms hereof by the Company or the Selling Shareholder.
(gg) All approvals, consents and orders of all governmental bodies required in connection with the valid authorization, issuance and sale of the Stock as contemplated by this Agreement have been obtained, except such as may be required under the securities or Blue Sky laws of any jurisdiction as to which such counsel need express no opinion.
(hh) To such counsel's knowledge, neither the Company nor any of its subsidiaries is in violation of its Articles of Incorporation or its Code of Regulations or other organizational documents, and, to the best of the knowledge of such counsel, no default exists by the Company or any of its subsidiaries in the due performance and observance of any term, covenant or condition of any indenture, mortgage, deed of trust, loan agreement or other agreement filed as an exhibit to the Registration Statement and by which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound.
(ii) Based solely on such counsel's examination of the share records of the Company, the Selling Shareholder is, as of the Closing Date, the owner of the shares of the Stock sold by the Selling Shareholder pursuant to this Agreement and has full legal right and power and all authorization and approval (if any), required by law to sell, transfer and deliver such shares in accordance with this Agreement, and that upon the delivery of and payment for such shares of the Stock in accordance with this Agreement, the several Underwriters will acquire all of the Selling Shareholder's rights in the shares of the Stock to be sold by the Selling Shareholder, free of any adverse claim (within the meaning of the Uniform Commercial Code provisions that govern the Selling Shareholder's sale of these shares of Stock to the Underwriters), assuming that the several Underwriters acquire the certificates representing the Stock in good faith without notice of any adverse claim (within the meaning of the Uniform Commercial Code provisions that govern the Selling Shareholder's sale of these shares of Stock to the Underwriters).
(jj) The Company is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(kk) No facts have come to the attention of such counsel which would lead such counsel to believe that either the Registration Statement at the time it became effective and at the Closing Date or the Second Closing Date, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, did not and do not include any contained an untrue statement of a material fact or omit 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 the date thereof and as of the Closing Date or the Second Closing Date, as the case may be, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; andmisleading (it being understood that such counsel need express no belief or opinion with respect to the financial statements and schedules and other financial and statistical information included therein). In rendering such opinion, since such counsel may rely (A) as to matters involving the effective date application of laws other than the laws of the Registration StatementUnited States and jurisdictions in which they are admitted, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(v) Subsequent to the respective dates extent specified in such opinion, if at all, upon an opinion or opinions of other counsel, familiar with the applicable laws; and (B) as to matters of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization fact on certificates of officers of the Company and of the Selling Shareholder and certificates or any Subsidiary that is material to other written statements of officers of departments of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company and its subsidiaries. The opinion of such counsel for the Company and the Subsidiaries taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vi) On the First Delivery Date, there Selling Shareholder shall have been furnished to you, as Representative of the several Underwriters, a certificate or certificates, dated the First Delivery Date and addressed to you, signed by each Selling Stockholder or such Selling Stockholder’s Attorneys-in-Fact to the effect state that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery Date.
(i) Neither the Company nor any of the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Disclosure Package and the Prospectus any loss or interference with its business, otherwise than as set forth in the Disclosure Package and the Prospectus and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capitalization of the Company or change, or any development or event involving a prospective change, on the condition (financial or otherwise), business, properties, business prospects or results of operations of the Company and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representative so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(i) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq, (ii) a suspension or material limitation in trading in the Company’s securities on the Nasdaq, (iii) a general moratorium on commercial banking activities declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect opinion of any such event specified other counsel is in clause (iv) or (v) form satisfactory to such counsel and, in the judgment of the Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms their opinion, you and in the manner contemplated in the Prospectus.
(j) The Representative shall have received from each person listed on Schedule B hereto an executed lock-up letter agreement substantially to the effect set forth in the form attached hereto as Schedule A.
(k) The Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. All opinions, certificates, letters and documents mentioned above or elsewhere in this Agreement shall be deemed to be compliance with the provisions hereof only if they are justified in form and substance satisfactory to counsel for the Underwritersrelying thereon.
Appears in 1 contract
Samples: Underwriting Agreement (International Total Services Inc)
Conditions of the Obligation of the Underwriters. The obligations of the several Underwriters hereunder shall be subject to the accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Selling Stockholders CareTrust contained herein, to the performance by each of the Company and the Selling Stockholders CareTrust of its obligations hereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c3(c) hereof; all material required to be filed by the Company CareTrust pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company CareTrust has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Eastern time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives.
(b) The Underwriters shall not have discovered and disclosed to the Company CareTrust prior to or on such Delivery Date that (i) the Registration Statement, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading, and (ii) any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Xxxxxx Xxxxxxx Xxxxxx O’Melveny & Brand, Xxxxx LLP, counsel for CareTrust and the CompanyOperating Partnership, shall have furnished to the Representative Representatives their written opinion and negative assurance letter, dated such Delivery Date, in form and substance satisfactory to the Representatives.
(d) Xxxxxxxx & Xxxxx LLP, counsel for CareTrust and the Operating Partnership, shall have furnished to the Representatives their written opinion regarding certain tax matters, dated such Delivery Date, in form and substance satisfactory to the Representatives.
(e) DLA Piper LLP (US), special Maryland counsel for CareTrust, shall have furnished to the Representatives their written opinion, dated such Delivery Date, in form and substance satisfactory to the RepresentativeRepresentatives.
(d) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Selling Stockholders, shall have furnished to the Representative their written opinion, dated the First Delivery Date, in form and substance satisfactory to the Representative.
(ef) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative Representatives their written opinion, dated such Delivery Date, in form and substance satisfactory to the RepresentativeRepresentatives.
(fg) The Underwriters shall have received, on each of the date hereof and each Delivery Date, a letter letters dated the date hereof or such Delivery Date, as the case may be, in form and substance satisfactory to the RepresentativeRepresentatives, from each of Ernst & Young LLP, LLP and Deloitte & Touche LLP containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company CareTrust and its consolidated subsidiaries Ensign Properties, as applicable, contained in the Registration Statement, the Disclosure Package and the Prospectus, provided that the letter shall use a “cut-off date” not earlier than the third day prior to such Delivery Date.
(gh) The Company CareTrust and the Operating Partnership will, on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer an executive officer of CareTrust and Chief Financial Officeran executive officer of the Operating Partnership, dated such Delivery Date, to the effect that:
(i) The representations and warranties of each of CareTrust and the Company Operating Partnership, as applicable, in this Agreement are true and correct, as if made on and as of the date thereof and provided that any reference therein to the First Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; and each of CareTrust and the Company Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and any amendments or supplements thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, did not and do not include any 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, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(v) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of CareTrust, the Company Operating Partnership or any Subsidiary that is material to CareTrust, the Company Operating Partnership and the Subsidiaries taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by CareTrust, the Company Operating Partnership or any Subsidiary that is material to CareTrust, the Company Operating Partnership and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company CareTrust on any class of its capital stock.
(vii) On CareTrust will, on each of the First date hereof and each Delivery Date, there shall have been furnished deliver to you, as Representative the Underwriters a certificate of the several Underwriters, a certificate or certificatesChief Financial Officer of CareTrust, dated the First Delivery Date and addressed to you, signed by each Selling Stockholder date hereof or such Selling Stockholder’s Attorneys-in-Fact to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery Date, in form and substance as is set forth on Exhibit C hereto.
(i) Neither CareTrust nor the Company Operating Partnership nor any of the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Disclosure Package and the Prospectus any loss or interference with its business, otherwise than as set forth in the Disclosure Package and the Prospectus and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capitalization of the Company CareTrust or change, or any development or event involving a prospective change, on the condition (financial or otherwise), business, properties, business prospects or results of operations of CareTrust, the Company Operating Partnership and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representative Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(ik) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on NASDAQ or the New York Stock Exchange, the American Stock Exchange or the Nasdaq, (ii) a suspension or material limitation in trading in the CompanyCareTrust’s securities on the NasdaqNASDAQ, (iii) a general moratorium on commercial banking activities declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representative Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(jl) The Representative Representatives shall have received from each person listed on Schedule Exhibit B hereto an executed lock-up letter agreement substantially to the effect set forth in the form attached hereto as Schedule Exhibit A.
(km) The Company Each of CareTrust and the Operating Partnership shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein containedrequest. All opinions, certificates, letters and documents mentioned above or elsewhere in this Agreement shall be deemed to be compliance with the provisions hereof only if they are in form and substance satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of the Obligation of the Underwriters. The respective obligations of the several Underwriters hereunder shall be subject to the accuracy, when made and on each Delivery Date, of the representations and warranties of the Company Company, the Founding Companies, the Subsidiaries and the Selling Stockholders contained herein, to the performance by each of the Company Company, the Founding Companies, the Subsidiaries and the Selling Stockholders of its their obligations hereunder, and to each of the following terms and additional conditions:
(a) The Prospectus shall have been timely filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c) hereof4(a); all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed complied with the Commission within the all filing requirements applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Eastern time, on any Issuer Free Writing Prospectus used or referred to after the date of this Agreementhereof; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated preventing or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings proceeding or examination for that such purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with to the reasonable satisfaction of the Representativewith.
(b) The Underwriters No Underwriter shall not have discovered and disclosed to the Company on or prior to or on such Delivery Date that (i) the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriterssuch counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and (ii) any preliminary prospectusvalidity of this Agreement, the Custody Agreements, the Powers of Attorney, the Securities, the Registration Statement, each Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in the opinion of all material respects to counsel for the Underwriters, is material or omits to state a fact which, in and the opinion of counsel for Company and the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Company, Selling Stockholders shall have furnished to the Representative their such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Fulbright & Xxxxxxxx L.L.P. shall have furnished to KBCM its written opinion, as counsel to the Company, addressed to the Underwriters and dated such Delivery Date, in form and substance satisfactory to the Representative.be agreed upon by KBCM and Fulbright & Xxxxxxxx L.L.P.
(de) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel Counsel for each of the Selling Stockholders, Stockholders shall have furnished to the Representative KBCM their written opinion, dated as counsel to each of the First Delivery DateSelling Stockholders for whom they are acting as counsel, in form and substance satisfactory addressed to the Representative.
(e) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative their written opinion, Underwriters and dated such Delivery Date, in form and substance satisfactory to the Representativebe agreed upon by KBCM and such counsel, which may be waived by KBCM with respect to one or more Selling Stockholders.
(f) The Underwriters KBCM shall have receivedreceived from Xxxxxx & Xxxxxx L.L.P., on each of counsel for the date hereof and each Delivery DateUnderwriters, a letter such opinion or opinions, dated the date hereof or such Delivery Date, with respect to the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as KBCM may reasonably require, and the case may beCompany shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, KBCM shall have received from Malin, Xxxxxxxx & Company, LLP a letter, in form and substance satisfactory to KBCM, addressed to the Representative, from Ernst & Young LLP, containing statements Underwriters and information dated the date hereof (i) confirming that they are independent public accountants within the meaning of the type Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Preliminary Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily included in covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(h) With respect to the letter of Malin, Xxxxxxxx & Company, LLP referred to in the preceding paragraph and delivered to KBCM concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to KBCM a letter (the “bring-down letter”) of such accountants, addressed to the Underwriters and dated such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Preliminary Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(i) At the time of execution of this Agreement, KBCM shall have received from Netherland, Xxxxxx & Associates, Inc. an initial letter (the “initial expert letter”), in form and substance satisfactory to KBCM, addressed to the Underwriters and dated the date hereof and a subsequent letter dated as of the Company and its consolidated subsidiaries contained in the Registration StatementDelivery Date, the Disclosure Package and the Prospectus, provided that the which such letter shall use cover the period from any initial expert letter to the Delivery Date, stating the conclusions and findings of such firm with respect to the Company’s oil and gas reserves as is customary to underwriters in connection with registered public offerings.
(j) The Company shall have furnished to KBCM a “cut-off date” not earlier than the third day prior to certificate, dated such Delivery Date.
(g) The Company will, on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer and its Chief Financial Officer, dated such Delivery Date, to the effect Officer stating that:
(i) The representations representations, warranties and warranties agreements of the Company Company, the Founding Companies and the Subsidiaries in this Agreement Section 1 are true and correct, as if made correct on and as of such Delivery Date, and each of the date thereof and provided that any reference therein to Company, the First Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; Founding Companies and the Company Subsidiaries has complied with all the its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and issued; and, to the knowledge of such officers, no proceedings or examination for that purpose have been instituted or are pending or threatened under the Securities Act;threatened; and
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose They have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and any amendments or supplements thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package and Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and any amendments on the applicable Delivery Date, or supplements thereto(3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not include contain any untrue statement of a material fact or and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements thereintherein (except in the case of the Registration Statement, in the light of the circumstances under which they were made, ) not misleading; and, misleading and (B) since the effective date of Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, there has occurred no event required to be set forth in an amendment the Prospectus or supplemented any Issuer Free Writing Prospectus which that has not been so set forth; and;
(vk) Subsequent to Each Selling Stockholder (or the respective dates as of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction Custodian or event which has a Material Adverse Effect, (b) change in the capitalization one or more attorneys-in-fact on behalf of the Company or any Subsidiary that is material Selling Stockholders) shall have furnished to the Company and the Subsidiaries taken as KBCM on such Delivery Date a wholecertificate, (c) any obligation, contingent or otherwise, directly or indirectly incurred by the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vi) On the First dated such Delivery Date, there shall have been furnished to yousigned by, as Representative of or on behalf of, the several Underwriters, a certificate or certificates, dated the First Delivery Date and addressed to you, signed by each Selling Stockholder (or such Selling Stockholder’s Attorneysthe Custodian or one or more attorneys-in-Fact to the effect fact) stating that the representations representations, warranties and warranties agreements of such the Selling Stockholder contained in this Agreement herein are true and correct as if made on and as of the date thereof, such Delivery Date and that such the Selling Stockholder has complied with all the its agreements contained herein and has satisfied all the conditions on such Selling Stockholder’s its part to be performed or satisfied hereunder at or prior to the First such Delivery Date.
(il) Each Selling Stockholder (or the Custodian or one or more attorneys-in-fact on behalf of such Selling Stockholder) shall have furnished to KBCM on such Delivery Date a certificate, dated such Delivery Date, signed by, or on behalf of, such Selling Stockholder (or the Custodian or one or more attorneys-in-fact) stating that such Selling Stockholder has carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, to its knowledge, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(1) Neither the Company nor any of the Subsidiaries its subsidiaries shall have sustained sustained, since the date of the latest audited financial statements included in the Disclosure Package and the Prospectus most recent Preliminary Prospectus, any loss or interference with its businessbusiness from fire, otherwise than as set forth in the Disclosure Package and the Prospectus and explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since subsequent to the respective dates as of which such information is given in the Prospectus, most recent Preliminary Prospectus there shall not have been any change in the capitalization capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development or event involving a prospective change, on in or affecting the condition (financial or otherwise), businessresults of operations, stockholders’ equity, properties, management, business or prospects or results of operations of the Company and the Subsidiaries, its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is is, in the judgment of the Representative KBCM, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares Securities being delivered on such Delivery Date on the terms and in the manner contemplated in each of the Disclosure Package most recent Preliminary Prospectus and the Prospectus.
(in) On or after [Intentionally omitted]
(o) Subsequent to the date hereof, execution and delivery of this Agreement there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the Nasdaq Global Market or the American Stock Exchange or in the Nasdaqover-the-counter market shall have been suspended or materially limited, (ii) a suspension or material limitation in trading in any securities of the Company’s securities Company on any exchange or in the Nasdaqover-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (iii) a general banking moratorium on commercial banking activities shall have been declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United Statesauthorities, (iv) the outbreak or United States shall have become engaged in hostilities that were not occurring as of the execution and delivery of this Agreement, there shall have been an escalation of in hostilities involving the United States that were occurring prior to the execution and delivery of this Agreement or the there shall have been a declaration by the United States of a national emergency or war by the United States or (v) the occurrence of any other calamity or crisis or any there shall have occurred such a material adverse change in financialgeneral economic, political or economic financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States or elsewhereshall be such), if the effect of any such event specified in clause (iv) or (v) as to make it, in the judgment of the Representative makes it KBCM, impracticable or inadvisable to proceed with the public offering or the delivery of the Shares Securities being delivered on such Delivery Date on the terms and in the manner contemplated in each of the most recent Preliminary Prospectus and the Prospectus.
(jp) The Representative Nasdaq shall have received from each person listed on Schedule B hereto an executed lockapproved the Securities for listing, subject only to official notice of issuance and evidence of satisfactory distribution.
(q) The Lock-up letter agreement substantially to Up Agreements between KBCM and the effect officers and directors of the Company set forth on Exhibit B, delivered to KBCM on or before the date of this Agreement, shall be in the form attached hereto as Schedule A.full force and effect on such Delivery Date.
(kr) The Company At the Closing Date, each of the Reorganization Transaction Agreements shall have furnished to the Representative such further information, certificates been duly executed and documents as the Representative may reasonably request for the purposes of enabling it to pass upon the issuance and sale delivered by each of the Shares as contemplated herein, or in order to evidence the accuracy of any of parties thereto; and the representations and warranties, or the satisfaction of any warranties of the conditions or agreementsCompany, herein containedeach of the Founding Companies, the Subsidiaries and the Selling Stockholders, as applicable, shall be true, accurate and correct as of the Closing Date. All opinions, certificatesletters, letters evidence and documents certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of the Obligation of the Underwriters. The obligations of the several Underwriters hereunder shall be subject to the accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Selling Stockholders CareTrust contained herein, to the performance by each of the Company and the Selling Stockholders CareTrust of its obligations hereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c3(c) hereof; all material required to be filed by the Company CareTrust pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company CareTrust has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Eastern time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives.
(b) The Underwriters shall not have discovered and disclosed to the Company CareTrust prior to or on such Delivery Date that (i) the Registration Statement, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading, and (ii) any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Xxxxxx Xxxxxxx Xxxxxx O’Melveny & Brand, Xxxxx LLP, counsel for CareTrust and the CompanyOperating Partnership, shall have furnished to the Representative Representatives their written opinion and negative assurance letter, dated such Delivery Date, in form and substance satisfactory to the Representatives.
(d) Xxxxxxxx & Xxxxx LLP, counsel for CareTrust and the Operating Partnership, shall have furnished to the Representatives their written opinion regarding certain tax matters, dated such Delivery Date, in form and substance satisfactory to the Representatives.
(e) DLA Piper LLP (US), special Maryland counsel for CareTrust, shall have furnished to the Representatives their written opinion, dated such Delivery Date, in form and substance satisfactory to the RepresentativeRepresentatives.
(d) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Selling Stockholders, shall have furnished to the Representative their written opinion, dated the First Delivery Date, in form and substance satisfactory to the Representative.
(ef) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative Representatives their written opinion, dated such Delivery Date, in form and substance satisfactory to the RepresentativeRepresentatives.
(fg) The Underwriters shall have received, on each of the date hereof and each Delivery Date, a letter letters dated the date hereof or such Delivery Date, as the case may be, in form and substance satisfactory to the RepresentativeRepresentatives, from each of Ernst & Young LLP, Deloitte & Touche LLP and Xxxxxxx & Associates, Inc. containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company CareTrust, Ensign Properties and its consolidated subsidiaries Pristine Ohio Holdings, LLC, as applicable, contained in the Registration Statement, the Disclosure Package and the Prospectus, provided that the letter shall use a “cut-off date” not earlier than the third day prior to such Delivery Date.
(gh) The Company CareTrust and the Operating Partnership will, on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer an executive officer of CareTrust and Chief Financial Officeran executive officer of the Operating Partnership, dated such Delivery Date, to the effect that:
(i) The representations and warranties of each of CareTrust and the Company Operating Partnership, as applicable, in this Agreement are true and correct, as if made on and as of the date thereof and provided that any reference therein to the First Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; and each of CareTrust and the Company Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and any amendments or supplements thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, did not and do not include any 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, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(v) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of CareTrust, the Company Operating Partnership or any Subsidiary that is material to CareTrust, the Company Operating Partnership and the Subsidiaries taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by CareTrust, the Company Operating Partnership or any Subsidiary that is material to CareTrust, the Company Operating Partnership and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company CareTrust on any class of its capital stock.
(vii) On CareTrust will, on each of the First date hereof and each Delivery Date, there shall have been furnished deliver to you, as Representative the Underwriters a certificate of the several Underwriters, a certificate or certificatesChief Financial Officer of CareTrust, dated the First Delivery Date and addressed to you, signed by each Selling Stockholder date hereof or such Selling Stockholder’s Attorneys-in-Fact to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery Date, in form and substance as is set forth on Exhibit C hereto.
(i) Neither CareTrust nor the Company Operating Partnership nor any of the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Disclosure Package and the Prospectus any loss or interference with its business, otherwise than as set forth in the Disclosure Package and the Prospectus and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capitalization of the Company CareTrust or change, or any development or event involving a prospective change, on the condition (financial or otherwise), business, properties, business prospects or results of operations of CareTrust, the Company Operating Partnership and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representative Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(ik) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on NASDAQ or the New York Stock Exchange, the American Stock Exchange or the Nasdaq, (ii) a suspension or material limitation in trading in the CompanyCareTrust’s securities on the NasdaqNASDAQ, (iii) a general moratorium on commercial banking activities declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representative Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(jl) The Representative Representatives shall have received from each person listed on Schedule Exhibit B hereto an executed lock-up letter agreement substantially to the effect set forth in the form attached hereto as Schedule Exhibit A.
(km) The Company Each of CareTrust and the Operating Partnership shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein containedrequest. All opinions, certificates, letters and documents mentioned above or elsewhere in this Agreement shall be deemed to be compliance with the provisions hereof only if they are in form and substance satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of the Obligation of the Underwriters. The obligations of the several Underwriters hereunder shall be subject to the accuracy, when made and on each the Delivery Date, of the representations and warranties of CareTrust, the Issuers and the Company and the Selling Stockholders Guarantors contained herein, to the performance by each of CareTrust, the Issuers and the Company and the Selling Stockholders Guarantors of its their obligations hereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c3(c) hereof; all material required to be filed by CareTrust, the Issuers and the Company Guarantors pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Eastern time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives.
(b) The Underwriters shall not have discovered and disclosed to CareTrust, the Issuers and the Company Guarantors prior to or on such Delivery Date that (i) the Registration Statement, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading, and (ii) any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Xxxxxx Xxxxxxx Xxxxxx O’Melveny & Brand, Xxxxx LLP, counsel for CareTrust, the CompanyIssuers and the Company Guarantors, shall have furnished to the Representative Representatives their written opinion and negative assurance letter, dated the Delivery Date, in form and substance satisfactory to the Representatives.
(d) Xxxxxxxx & Xxxxx LLP, counsel for CareTrust, the Issuers and the Company Guarantors, shall have furnished to the Representatives their written opinion regarding certain tax matters, dated the Delivery Date, in form and substance satisfactory to the Representatives.
(e) DLA Piper LLP (US), special Maryland counsel for CareTrust, shall have furnished to the Representatives their written opinion, dated such Delivery Date, in form and substance satisfactory to the RepresentativeRepresentatives.
(df) Xxxxxx Albright, Stoddard, Xxxxxxx Xxxxxx & BrandXxxxxxxx, LLP, special Nevada counsel for the Selling StockholdersCompany Guarantors, shall have furnished to the Representative Representatives their written opinion, dated the First Delivery Date, in form and substance satisfactory to the RepresentativeRepresentatives.
(eg) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative Representatives their written opinion, dated such Delivery Date, in form and substance satisfactory to the RepresentativeRepresentatives.
(fh) The Underwriters shall have received, on each of the date hereof and each the Delivery Date, a letter letters dated the date hereof or such the Delivery Date, as the case may be, in form and substance satisfactory to the RepresentativeRepresentatives, from Ernst & Young LLP, LLP containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company and its consolidated subsidiaries CareTrust contained in the Registration Statement, the Disclosure Package and the Prospectus, provided that the letter shall use a “cut-off date” not earlier than the third day prior to such the Delivery Date.
(gi) The Company CareTrust and the Operating Partnership will, on each the Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer an executive officer of CareTrust and Chief Financial Officeran executive officer of the Operating Partnership, dated such the Delivery Date, to the effect that:
(i) The representations and warranties of each of CareTrust, the Issuers and the Company Guarantors, as applicable, in this Agreement are true and correct, as if made on and as of the date thereof and provided that any reference therein to each of CareTrust, the First Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; Issuers and the Company Guarantors has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such the Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and any amendments or supplements thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, did not and do not include any 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, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(v) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of CareTrust, the Issuers or the Company or any Subsidiary Guarantors that is material to CareTrust, the Issuers and the Company and the Subsidiaries Guarantors taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by CareTrust, the Issuers or the Company or any Subsidiary Guarantors that is material to CareTrust, the Issuers and the Company and the Subsidiaries Guarantors taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company CareTrust on any class of its capital stock.
(vij) On CareTrust will, on each of the First date hereof and the Delivery Date, there shall have been furnished deliver to you, as Representative the Underwriters a certificate of the several Underwriters, a certificate or certificatesChief Financial Officer of CareTrust, dated the First date hereof or the Delivery Date Date, as applicable, in form and addressed to you, signed by each Selling Stockholder or such Selling Stockholder’s Attorneys-in-Fact substance satisfactory to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery DateRepresentatives.
(k) (i) Neither CareTrust, the Issuers nor the Company nor any of the Subsidiaries Guarantors shall have sustained since the date of the latest audited financial statements included in the Disclosure Package and the Prospectus any loss or interference with its business, otherwise than as set forth in the Disclosure Package and the Prospectus and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capitalization of CareTrust, the Issuers or the Company Guarantors or change, or any development or event involving a prospective change, on the condition (financial or otherwise), business, properties, business prospects or results of operations of CareTrust, the Issuers and the Company and the SubsidiariesGuarantors, taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representative Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares Securities being delivered on such the Delivery Date on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(il) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on NASDAQ or the New York Stock Exchange, the American Stock Exchange or the Nasdaq, (ii) a suspension or material limitation in trading in the CompanyCareTrust’s securities on the NasdaqNASDAQ, (iii) a general moratorium on commercial banking activities declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representative Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares Securities being delivered on such the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(jm) CareTrust, the Issuers, the Company Guarantors and the Trustee shall have entered into the Indenture.
(n) The Representative Issuers shall have received from duly executed the Notes, and the Guarantors shall have duly executed the Guarantees of the Notes, in each person listed on Schedule B hereto an executed lock-up letter agreement substantially to the effect set forth case in the form attached hereto as Schedule A.required pursuant to the Indenture.
(ko) The Prior to the Closing Time, the Issuers and the Trustee shall have executed and delivered the Letter of Representations to DTC and at the Closing Time, the Securities shall be eligible for clearance, settlement and trading through the facilities of DTC.
(p) Subsequent to the earlier of (A) the Applicable Time and (B) the execution and delivery of this Agreement and prior to the Delivery Date, (i) no downgrading in, or withdrawal of, the rating accorded the Securities or any other debt securities issued or guaranteed by CareTrust, the Issuers or the Company Guarantors by any “nationally recognized statistical rating organization”, as such term is defined under Section 3(a)(62) under the Exchange Act, shall have occurred and (ii) no such organization shall have publicly announced that it has under surveillance or review with possible negative implications, or has changed its outlook with respect to, its rating of the Securities or of any other debt securities issued or guaranteed by CareTrust, the Issuers or the Company Guarantors.
(q) Each of CareTrust, the Issuers and the Company Guarantors shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein containedrequest. All opinions, certificates, letters and documents mentioned above or elsewhere in this Agreement shall be deemed to be compliance with the provisions hereof only if they are in form and substance satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of the Obligation of the Underwriters. The obligations of the several Underwriters hereunder to purchase and pay for the Firm Stock on the Closing Date and the Option Stock on the Second Closing Date shall be subject to the accuracy, when made and on each Delivery Date, of condition that the representations and warranties made by the Company herein are true and correct as of the date hereof and as of the respective Closing Dates, to the condition that the written statements of Company officers made pursuant to the provisions hereof are true and the Selling Stockholders contained hereincorrect, and to the performance by each of the Company and the Selling Stockholders of its their obligations hereunder, hereunder and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m.not later than 5:00 P.M., Eastern Cleveland time, on the date of this Agreement; , or at such later time as shall have been consented to by you, and prior to each Closing Date no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated instituted or threatened shall be pending, or to the knowledge of the Company or you, shall be contemplated by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative.
(b) The Underwriters You shall not have discovered and disclosed to advised the Company prior to or on such Delivery Date that (i) the Registration Statement, Statement or Prospectus or any amendment thereof or supplement thereto, thereto contains an untrue statement of a fact which, in the reasonable opinion of Calfxx, Xxlter & Grisxxxx XXX, counsel for the Underwriters, is material material, or omits to state a fact which, in the opinion of counsel for the Underwriterssuch counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, and (ii) any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Company, You shall have furnished to received as of each Closing Date (or prior thereto as indicated) the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.following:
(di) Xxxxxx Xxxxxxx Xxxxxx An opinion of Bakex & Brand, LLP, counsel for the Selling Stockholders, shall have furnished to the Representative their written opinionXostxxxxx XXX, dated the First Delivery Daterespective Closing Dates, to the effect that:
(aa) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of Ohio with corporate power and authority to own its properties and conduct its business as described in the Prospectus. Each of the Company's Subsidiaries has been duly incorporated or, in form and substance satisfactory to the Representative.
(e) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.
(f) The Underwriters shall have received, on each case of the date hereof Baseball Partnership, formed and each Delivery Date, is validly existing as a letter dated the date hereof corporation or such Delivery Datepartnership, as the case may be, in form good standing under the laws of its respective jurisdiction of incorporation or formation, as the case may be, with power and substance satisfactory authority to own and lease its properties and conduct its respective business. The Company and each of its Subsidiaries are duly qualified to do business as a foreign corporation and are in good standing in all jurisdictions (i) in which the Representativeconduct of business, from Ernst & Young LLPas presently being conducted, containing statements requires such qualification (except for those jurisdictions in which the failure to so qualify will not in the aggregate have a material adverse effect on the Company and information its Subsidiaries) and (ii) in which the Company or such Subsidiary owns or leases real property.
(bb) The authorized capital stock of the type ordinarily included Company is as set forth under "Capitalization" in accountants’ “comfort letters” the Prospectus; all issued and outstanding Common Shares of the Company have been duly authorized and validly issued and are fully paid and nonassessable, and are free of preemptive rights of stockholders, rights of first refusal or similar rights. Except as described in the Prospectus, there are no outstanding options, warrants or other rights calling for the issuance of and there are no commitments, plans or arrangements to underwriters issue any shares of capital stock of the Company or any security convertible or exchangeable or exercisable for capital stock of the Company, and there are no holders of securities of the Company who, by reason of the filing of the Registration Statement, have the right (and have not waived such right) to request the Company to include in the Registration Statement securities owned by them, other than such rights as have been satisfied by the inclusion of securities in the Registration Statement.
(cc) The Common Shares of the Company to be issued and sold by the Company hereunder have been duly authorized, and, when issued, delivered and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable. No preemptive rights of security holders of the Company exist with respect to the financial statements issuance and certain financial information sale of the Stock by the Company pursuant to this Agreement. The Common Shares of the Company and its consolidated subsidiaries conform to the description thereof contained in the Registration Statement, the Disclosure Package Prospectus and the Prospectus, provided that certificates for the letter shall use a “cut-off date” not earlier than Common Shares of the third day prior to such Delivery DateCompany (including the Stock) are in due and legal form under Ohio law.
(gdd) The Company willhas the corporate power and authority to enter into and perform this Agreement, on and to issue and deliver the Stock as provided herein. The execution, delivery and performance of this Agreement by the Company has been duly authorized by all necessary action of the Company. This Agreement constitutes the legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity may be limited by public policy and applicable federal or state securities laws and except as enforcement thereof may be limited by bankruptcy, insolvency or other laws of general application affecting the enforcement of creditors' rights or limitations upon the availability of certain remedies that may be precluded by general principles of equity.
(ee) All the issued shares of capital stock of each Delivery Datecorporate Subsidiary of the Company have been duly and validly authorized and issued, deliver are fully paid and non-assessable and are owned by the Company free and clear of all liens, encumbrances, equities, security interests, or claim; and there are no outstanding options, warrants or other rights calling for the issuance of, and there are no commitments, plans or arrangements to issue, any shares of capital stock of any Subsidiary or any security convertible or exchangeable or exercisable for capital stock of any Subsidiary; except as disclosed in the Underwriters Registration Statement and except for the shares of stock or partnership interest in the Baseball Partnership, as the case maybe, of each Subsidiary owned by the Company, neither the Company nor any Subsidiary owns, directly or indirectly, any shares of capital stock of any corporation or has any equity interest in any firm, partnership, joint venture, association or other entity.
(ff) All of the general partner interests in the Baseball Partnership are owned by the Company and all of the limited partner interests in the Baseball Partnership are owned by Cleveland Baseball Corporation, a certificate __________ corporation, in each case free and clear of its Chief Executive Officer all liens, encumbrances, equities, security interests or claims; and Chief Financial Officerthere are no outstanding options, dated such Delivery Datewarrants or other rights calling for the issuance of, and there are no commitments, plans or arrangements to issue, any interests in the Baseball Partnership or any security convertible or exchangeable or exercisable for interests in the Baseball Partnership.
(gg) The Registration Statement has become effective under the Act and, to the effect that:
(i) The representations and warranties best of the Company in this Agreement are true and correctknowledge of such counsel, as if made on and as of the date thereof and provided that any reference therein to the First Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; 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 such Delivery Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened contemplated under the Securities Act;
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the . The Registration Statement and the Prospectus, and any amendments each amendment thereof or supplements supplement thereto contained (except for the financial statements and schedules included therein as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Rules and Regulations (except for the financial statements and schedules included therein as to which such counsel need express no opinion); the descriptions in the Registration Statement and the Prospectus of the Common Shares, statutes, regulations, leases, employee benefit plans, contracts and other documents are materially accurate and fairly present the information required to be included therein shown; and such counsel does not know of any legal or governmental proceedings, pending or threatened, which are required by the Securities Act or the Exchange Act and the Rules and Regulations to be described in the Prospectus and which are not described as so required, or of any leases, contracts or other documents of a character which are required by the Act and the Rules and Regulations to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement and which are not described and/or filed as so required.
(hh) The consummation of the transactions herein contemplated and the fulfillment of the terms hereof will not result in a breach of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of its Subsidiaries is a party and of which such counsel has knowledge after reasonable investigation, or the Articles of Incorporation or Code of Regulations of the Company, or the organizational documents of any of its Subsidiaries, or, in the case of the Baseball Partnership, its Certificate of Limited Partnership or partnership agreement, or any of the MLB Governing Documents, or, to the knowledge of such counsel, any order, rule or regulation applicable rules to the Company or any of its Subsidiaries of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Company or any of its Subsidiaries or the properties of any of them, except for such breaches or defaults as will not have a material adverse effect on the consummation of the transactions herein contemplated and the fulfillment of the terms hereof by the Company.
(ii) All approvals, consents and orders of all governmental bodies required in connection with the valid authorization, issuance and sale of the Stock as contemplated by this Agreement have been obtained, except such as may be required under the securities or Blue Sky laws of any jurisdiction as to which such counsel need express no opinion.
(jj) To such counsel's knowledge, neither the Company nor any of its Subsidiaries is in violation of its Articles of Incorporation or its Code of Regulations or other organizational documents, or, in the case of the Baseball Partnership, its Certificate of Limited Partnership or partnership agreement, and, to the best of the knowledge of such counsel, no default exists by the Company or any of its Subsidiaries in the due performance and observance of any term, covenant or condition of any indenture, mortgage, deed of trust, loan agreement or other agreement filed as an exhibit to the Registration Statement and by which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound.
(kk) The Company is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(ll) To the best of such counsel's knowledge, the Company and its Subsidiaries are not in violation of any Federal or Ohio laws and regulations that are of general application to corporations or partnerships in the conduct of their business, except where the failure so to comply or conform would not have a material adverse effect on the business, condition (financial or other) or results of operations of the Commission thereunderCompany and its Subsidiaries, taken as a whole.
(mm) No facts have come to the attention of such counsel which would lead such counsel to believe that either the Registration Statement at the time it became effective and at the Closing Date or the Second Closing Date, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, did not and do not include any contained an untrue statement of a material fact or omit 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 the date thereof and as of the Closing Date or the Second Closing Date, as the case may be, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; andmisleading (it being understood that such counsel need express no belief or opinion with respect to the financial statements and schedules included therein). In rendering such opinion, since such counsel may rely (A) as to matters involving the effective date application of laws other than the laws of the Registration StatementUnited States and jurisdictions in which they are admitted, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(v) Subsequent to the respective dates as extent specified in such opinion, if at all, upon an opinion or opinions of which information is given in other counsel, familiar with the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vi) On the First Delivery Date, there shall have been furnished to you, as Representative of the several Underwriters, a certificate or certificates, dated the First Delivery Date and addressed to you, signed by each Selling Stockholder or such Selling Stockholder’s Attorneys-in-Fact to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery Date.
(i) Neither the Company nor any of the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Disclosure Package and the Prospectus any loss or interference with its business, otherwise than as set forth in the Disclosure Package and the Prospectus applicable laws; and (iiB) since the respective dates as to matters of which information is given in the Prospectus, there shall not have been any change in the capitalization fact on certificates of the Company or change, or any development or event involving a prospective change, on the condition (financial or otherwise), business, properties, business prospects or results of operations officers of the Company and certificates or other written statements of officers of departments of various jurisdictions having custody of documents respecting the Subsidiaries, taken as a whole, otherwise than as set forth corporate existence or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment good standing of the Representative so material Company and adverse as to make it impracticable or inadvisable to proceed with its Subsidiaries. The opinion of such counsel for the public offering or Company shall state that the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(i) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq, (ii) a suspension or material limitation in trading in the Company’s securities on the Nasdaq, (iii) a general moratorium on commercial banking activities declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect opinion of any such event specified other counsel is in clause (iv) or (v) form satisfactory to such counsel and, in the judgment of the Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms their opinion, you and in the manner contemplated in the Prospectus.
(j) The Representative shall have received from each person listed on Schedule B hereto an executed lock-up letter agreement substantially to the effect set forth in the form attached hereto as Schedule A.
(k) The Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. All opinions, certificates, letters and documents mentioned above or elsewhere in this Agreement shall be deemed to be compliance with the provisions hereof only if they are justified in form and substance satisfactory to counsel for the Underwritersrelying thereon.
Appears in 1 contract
Samples: Underwriting Agreement (Cleveland Indians Baseball Co Inc)
Conditions of the Obligation of the Underwriters. The respective obligations of the several Underwriters hereunder shall be subject to the accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Selling Stockholders contained herein, to the performance by each of the Company and the Selling Stockholders of its their obligations hereunder, and to each of the following terms and additional conditions:
(a) The Prospectus shall have been timely filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c4(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed complied with the Commission within the all filing requirements applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Eastern time, on any Issuer Free Writing Prospectus used or referred to after the date of this Agreementhereof; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated preventing or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings proceeding or examination for that such purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with to the reasonable satisfaction of the Representativewith.
(b) The Underwriters No Underwriter shall not have discovered and disclosed to the Company on or prior to or on such Delivery Date that (i) the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of LeBoeuf, Lamb, Gxxxxx & MxxXxx LLP, counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriterssuch counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, and (ii) any preliminary prospectus, any Issuer Free Writing in the case of the Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements thereinPricing Disclosure Package, in the light of the circumstances under in which they such statements were made, ) not misleading.
(c) Xxxxxx Xxxxxxx Xxxxxx & BrandAll corporate proceedings and other legal matters incident to the authorization, LLPform and validity of this Agreement, the Custody Agreements the Power of Attorney, the Securities, the Registration Statement, each Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the CompanyUnderwriters, and the Company and the Selling Stockholders shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Hxxxxx & Hxxxxx Attorneys, P.C. shall have furnished to the Representative their its written opinion, as counsel to the Company, addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-1.
(de) Xxxxxx Xxxxxxx Xxxxxx & BrandThe Company shall have furnished to the Representative its written opinion of Mxxxxxx X. Xxxxxxxx, LLPEsq., Senior Vice President, General Counsel and Secretary of the Company, addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Exhibit A-2.
(f) Hxxxxxxx Mxxxxx Sxxxxxxx and Cxxx LLP , counsel for the Selling Stockholders, shall have furnished to the Representative their written opinion, dated as counsel to each of the First Delivery DateSelling Stockholders, in form and substance satisfactory addressed to the Representative.
(e) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative their written opinion, Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to the Representative., substantially in the form attached hereto as Exhibit B.
(fg) The Underwriters Representative shall have receivedreceived from LeBoeuf, on each of Lamb, Gxxxxx & MxxXxx LLP, counsel for the date hereof and each Delivery DateUnderwriters, a letter such opinion or opinions, dated the date hereof or such Delivery Date, with respect to the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the case Representative may berequire, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(h) At the time of execution of this Agreement, the Representative shall have received from Ernst & Young LLP a letter, in form and substance satisfactory to the Representative, from Ernst & Young LLP, containing statements addressed to the Underwriters and information dated the date hereof (i) confirming that they are independent public accountants within the meaning of the type Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Preliminary Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to certain financial information and other matters ordinarily included in covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings. With respect to the letter of Ernst & Young LLP referred to in the preceding paragraph and delivered to the Representative concurrently with the execution of this Agreement (the “initial letter”), the Representative shall have received from Ernst & Young LLP a letter (the “bring-down letter”), addressed to the Underwriters and dated such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Preliminary Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial statements information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(i) At the time of execution of this Agreement, the Representative shall have received from PricewaterhouseCoopers LLP a letter, in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof (i) confirming that they were at all relevant times independent public accountants within the meaning of the Securities Act and in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Preliminary Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to certain financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings. With respect to the letter of PricewaterhouseCoopers LLP referred to in the preceding paragraph and delivered to the Representative concurrently with the execution of this Agreement (the “initial PwC letter”), the Representative shall have received from PricewaterhouseCoopers LLP a letter (the “bring-down PwC letter”), addressed to the Underwriters and dated such Delivery Date (i) confirming that they were at all relevant times independent public accountants within the meaning of the Company Securities Act and its consolidated subsidiaries contained in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down PwC letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Registration Statementmost recent Preliminary Prospectus, as of a date not more than three days prior to the date of the bring-down PwC letter), the Disclosure Package conclusions and findings of such firm with respect to the Prospectusfinancial information and other matters covered by the initial PwC letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial PwC letter.
(j) The Company shall have furnished to the Representative a certificate, provided that the letter shall use a “cut-off date” not earlier than the third day prior to dated such Delivery Date.
(g) The Company will, on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer and its Chief Financial Officer, dated such Delivery Date, to the effect Officer stating that:
(i) The representations representations, warranties and warranties agreements of the Company in this Agreement Section 1 are true and correct, as if made correct on and as of the date thereof and provided that any reference therein to the First such Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; Date, and the Company has complied with all the its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued issued; and no proceedings or examination for that purpose have been instituted or are pending or threatened under or, to the Securities Act;knowledge of such officers, threatened; and
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose They have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and any amendments or supplements thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package and Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and any amendments on the applicable Delivery Date, or supplements thereto(3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not include contain any untrue statement of a material fact or and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements thereintherein (except in the case of the Registration Statement, in the light of the circumstances under which they were made, ) not misleading; and, misleading and (B) since the effective date of Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, there has occurred no event required to be set forth in an amendment the Prospectus or supplemented any Issuer Free Writing Prospectus which that has not been so set forth; and
(v) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vik) On Each Selling Stockholder (or the First Custodian or one or more attorneys-in-fact on behalf of the Selling Stockholders) shall have furnished to the Representative on such Delivery Date a certificate, dated such Delivery Date, there shall have been furnished to yousigned by, as Representative of the several Underwritersor on behalf of, a certificate or certificates, dated the First Delivery Date and addressed to you, signed by each such Selling Stockholder (or such Selling Stockholder’s Attorneysthe Custodian or one or more attorneys-in-Fact to the effect fact) stating that the representations representations, warranties and warranties agreements of such Selling Stockholder contained in this Agreement herein are true and correct as if made on and as of the date thereof, such Delivery Date and that such the Selling Stockholder has complied with all the its agreements contained herein and has satisfied all the conditions on such Selling Stockholder’s its part to be performed or satisfied hereunder at or prior to the First such Delivery Date.
(l) Each Selling Stockholder (or the Custodian or one or more attorneys-in-fact on behalf of such Selling Stockholder) shall have furnished to the Representative on such Delivery Date a certificate, dated such Delivery Date, signed by, or on behalf of, such Selling Stockholder (or the Custodian or one or more attorneys-in-fact) stating that such Selling Stockholder has carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, to its knowledge, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(i) Neither the Company nor any of the its Subsidiaries shall have sustained sustained, since the date of the latest audited financial statements included in the Disclosure Package and the Prospectus most recent Preliminary Prospectus, any loss or interference with its businessbusiness from fire, otherwise than as set forth in the Disclosure Package and the Prospectus and explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since the respective dates as of which information is given in the Prospectus, such date there shall not have been any change in the capitalization capital stock or long-term debt of the Company or any of its Subsidiaries or any change, or any development or event involving a prospective change, on in or affecting the condition (financial or otherwise), businessresults of operations, stockholders’ equity, properties, management, business or prospects or results of operations of the Company and the Subsidiaries, its Subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is is, in the judgment of the Representative Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares Securities being delivered on such Delivery Date on the terms and in the manner contemplated in each of the Disclosure Package most recent Preliminary Prospectus and the Prospectus.
(n) Subsequent to the execution and delivery of this Agreement (i) On no downgrading shall have occurred in the rating accorded the Company’s debt securities or after preferred stock by any “nationally recognized statistical rating organization” (as that term is defined by the date hereofCommission for purposes of Rule 436(g)(2) of the Securities Act Regulations), (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock and (iii) A.M. Best Company shall have not downgraded, or announced that it has placed under surveillance or review, with possible negative implications, the financial strength rating assigned to any of the Company’s Subsidiaries.
(o) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the Nasdaq Global Market or the American Stock Exchange or in the Nasdaqover-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a suspension banking moratorium shall have been declared by federal or material limitation in trading in the Company’s securities on the Nasdaqstate authorities, (iii) a general moratorium on commercial banking activities declared by the United States federal or New York or Delaware state authorities or a material disruption shall have become engaged in commercial banking or securities settlement or clearance services hostilities, there shall have been an escalation in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the there shall have been a declaration by the United States of a national emergency or war by the United States or (viv) the occurrence of any other calamity or crisis or any there shall have occurred such a material adverse change in financialgeneral economic, political or economic financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States or elsewhereshall be such), if the effect of any such event specified in clause (iv) or (v) as to make it, in the judgment of the Representative makes it Representative, impracticable or inadvisable to proceed with the public offering or the delivery of the Shares Securities being delivered on such Delivery Date on the terms and in the manner contemplated in each of the most recent Preliminary Prospectus and the Prospectus.
(jp) The Representative New York Stock Exchange shall have received from each person listed on Schedule B hereto an executed lockapproved the Securities for listing, subject only to official notice of issuance and evidence of satisfactory distribution.
(q) The Lock-up letter agreement substantially to Up Agreements between the effect Representative and the officers and directors of the Company set forth in the form attached hereto as Schedule A.
(k) The Company shall have furnished on Exhibit D, delivered to the Representative on or before the date of this Agreement, shall be in full force and effect on such further information, certificates and documents as the Representative may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein containedDelivery Date. All opinions, certificatesletters, letters evidence and documents certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Meadowbrook Insurance Group Inc)
Conditions of the Obligation of the Underwriters. The obligations of the several Underwriters hereunder to purchase and pay for the Firm Stock on the Closing Date and the Option Stock on the Second Closing Date shall be subject to the accuracy, when made and on each Delivery Date, of condition that the representations and warranties made by the Company herein are true and correct as of the date hereof and as of the respective Closing Dates, to the condition that the written statements of Company officers made pursuant to the provisions hereof are true and correct, to the Selling Stockholders contained hereincondition that the Formation Transactions shall have been consummated, and to the performance by each of the Company and the Selling Stockholders of its their obligations hereunder, hereunder and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m.not later than 5:00 P.M., Eastern Cleveland time, on the date of this Agreement; , or at such later time as shall have been consented to by you, and prior to each Closing Date no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated instituted or threatened shall be pending, or to the knowledge of the Company or you, shall be contemplated by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative.
(b) The Underwriters You shall not have discovered and disclosed to advised the Company prior to or on such Delivery Date that (i) the Registration Statement, Statement or Prospectus or any amendment thereof or supplement thereto, thereto contains an untrue statement of a fact which, in the reasonable opinion of Calfxx, Xxlter & Grisxxxx XXX, counsel for 13 the Underwriters, is material material, or omits to state a fact which, in the opinion of counsel for the Underwriterssuch counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, and (ii) any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Company, You shall have furnished to received as of each Closing Date (or prior thereto as indicated) the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.following:
(di) Xxxxxx Xxxxxxx Xxxxxx An opinion of Bakex & Brand, LLP, counsel for the Selling Stockholders, shall have furnished to the Representative their written opinionXostxxxxx XXX, dated the First Delivery Date, in form and substance satisfactory to the Representative.
(e) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.
(f) The Underwriters shall have received, on each of the date hereof and each Delivery Date, a letter dated the date hereof or such Delivery Date, as the case may be, in form and substance satisfactory to the Representative, from Ernst & Young LLP, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company and its consolidated subsidiaries contained in the Registration Statement, the Disclosure Package and the Prospectus, provided that the letter shall use a “cut-off date” not earlier than the third day prior to such Delivery Date.
(g) The Company will, on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer and Chief Financial Officer, dated such Delivery Daterespective Closing Dates, to the effect that:
(iaa) The representations Company has been duly organized and warranties is validly existing as a corporation in good standing under the laws of Ohio with all requisite corporate power and authority to own its properties and conduct its business as described in the Prospectus. The Baseball Partnership has been duly formed and is validly existing as a partnership in full force and effect under the laws of Ohio, with all requisite partnership power and authority to own and lease its properties and conduct its business. The Company and the Baseball Partnership are duly qualified to do business as a foreign corporation or partnership, as the case may be, and are in good standing in all jurisdictions in which the conduct of business, as presently being conducted, or the ownership or leasing of its properties, requires such qualification (except for those jurisdictions in which the failure to so qualify will not in the aggregate have a material adverse effect on the Company and the Baseball Partnership, taken as a whole).
(bb) The authorized capital stock of the Company is as set forth under "Capitalization" in the Prospectus; all issued and outstanding Common Shares of the Company have been duly authorized and validly issued and are fully paid and nonassessable, and are free of statutory preemptive rights of stockholders or, to the best knowledge of such counsel, contractual preemptive rights, rights of first refusal or similar contractual rights. Except as described in the Prospectus, to the best knowledge of such counsel, there are no outstanding options, warrants or other rights calling for the issuance of and there are no commitments, plans or arrangements to issue any shares of capital stock of the Company or any security convertible or exchangeable or exercisable for capital stock of the Company, and, to the best knowledge of such counsel, there are no holders of securities of the Company who, by reason of the filing of the Registration Statement, have the right (and have not waived such right) to request the Company to include in the Registration Statement securities owned by them.
(cc) The Common Shares of the Company to be issued and sold by the Company hereunder have been duly authorized, and, when issued, delivered and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable. No statutory or, to the best knowledge of such counsel, any other preemptive rights of security holders of the Company exist with respect to the issuance and sale of the Stock by the Company pursuant to this Agreement. The Common Shares of the Company conform to the description thereof contained in the Prospectus and the certificates for the Common Shares of the Company (including the Stock) are in due and legal form under Ohio law.
(dd) The Company has the corporate power and authority to enter into and perform this Agreement, and to issue and deliver the Stock as provided herein. The execution, delivery and performance of this Agreement are true and correct, as if made on and as of the date thereof and provided that any reference therein to the First Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; and by the Company has complied been duly authorized by all necessary action of the Company. This Agreement constitutes the legal, valid and binding obligation of the Company, enforceable in accordance with all its terms, except as rights to indemnity may be limited by public policy and applicable federal or state securities laws and except as enforcement thereof may be limited by bankruptcy, insolvency or other laws of general application affecting the agreements and satisfied all enforcement of creditors' rights or limitations upon the conditions on its part to availability of certain remedies that may be performed or satisfied at or prior to such Delivery Date;precluded by general principles of equity.
(iiee) No Except as disclosed in the Registration Statement and except for the partnership interest in the Baseball Partnership owned by the Company, neither the Company nor the Baseball Partnership owns, directly or indirectly, any shares of capital stock of any corporation or has any equity interest in any firm, partnership, joint venture, association or other entity.
(ff) Upon completion of the Formation Transactions, all of the general partner interests in the Baseball Partnership will be owned by the Company and all of the limited partner interests in the Baseball Partnership will be owned by Cleveland Baseball Corporation, an Ohio corporation, in each case, to the best knowledge of such counsel, free and clear of all liens, encumbrances, equities, security interests or claims; and, to the best knowledge of such counsel, there are no outstanding options, warrants or other rights calling for the issuance of, and there are no commitments, plans or arrangements to issue, any interests in the Baseball Partnership or any security convertible or exchangeable or exercisable for interests in the Baseball Partnership.
(gg) The Registration Statement has become effective under the Act and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened contemplated under the Securities Act;
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the . The Registration Statement and the Prospectus, and any amendments each amendment thereof or supplements supplement thereto contained (except for the financial statements and schedules included therein as to which such counsel need express no opinion) comply as to form in all material information required to be included therein by respects with the Securities Act or requirements of the Exchange Act and the applicable rules Rules and regulations Regulations (except for the financial statements and schedules included therein as to which such counsel need express no opinion); the statements in the Prospectus under the captions "Business - Operating Agreements and Leases," "Major League Baseball - Collective Bargaining Agreement," "Management - Stock Option Plan; - Employment Agreements" and "Description of Capital Shares," in each case insofar as such statements constitute summaries of the Commission thereunderlegal matters, documents or proceeding referred to therein, fairly present the information called for by the Act with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein; and such counsel does not know of any legal or governmental proceedings, pending or threatened, which are required by the Act and the Rules and Regulations to be described in the Prospectus and which are not described as so required, or of any leases, contracts or other documents that are required by the Act and the Rules and Regulations to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement and which are not described or filed as so required.
(hh) The consummation of the transactions herein contemplated and the fulfillment of the terms hereof do not result in a breach of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or the Baseball Partnership is a party and of which such counsel has knowledge, or the Articles of Incorporation or Code of Regulations of the Company, or the Certificate of Limited Partnership or partnership agreement of the Baseball Partnership, or any of the MLB Governing Documents, or, to the knowledge of such counsel, any approval, consent, order, rule or regulation applicable to the Company or the Baseball Partnership of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Company or the Baseball Partnership or the properties of any of them, except for such breaches or defaults as will not have a material adverse effect on the consummation of the transactions herein contemplated and the fulfillment of the terms hereof by the Company, except such as may be required under the securities or Blue Sky laws of any jurisdiction as to which such counsel need express no opinion.
(ii) The Company is not required to register as an "investment company" under the Investment Company Act of 1940, as amended. Such counsel shall also state that no facts have come to the attention of such counsel which would lead such counsel to believe that either the Registration Statement at the time it became effective and at the Closing Date or the Second Closing Date, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, did not and do not include any contained an untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus as of the date thereof and as of the Closing Date or the Second Closing Date, as the case may be, contained an 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; andmisleading (it being understood that such counsel need express no belief or opinion with respect to the financial statements and schedules included therein). In rendering such opinion, since such counsel may rely (A) as to matters involving the effective date application of laws other than the laws of the Registration StatementUnited States and jurisdictions in which they are admitted, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(v) Subsequent to the respective dates extent specified in such opinion, if at all, upon an opinion or opinions of other counsel, familiar with the applicable laws; and (B) as to matters of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization fact on certificates of officers of the Company and certificates or any Subsidiary that is material to other written statements of officers of departments of various jurisdictions having custody of documents respecting the Company and the Subsidiaries taken as a whole, (c) any obligation, contingent corporate existence or otherwise, directly or indirectly incurred by the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vi) On the First Delivery Date, there shall have been furnished to you, as Representative of the several Underwriters, a certificate or certificates, dated the First Delivery Date and addressed to you, signed by each Selling Stockholder or such Selling Stockholder’s Attorneys-in-Fact to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery Date.
(i) Neither the Company nor any of the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Disclosure Package and the Prospectus any loss or interference with its business, otherwise than as set forth in the Disclosure Package and the Prospectus and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capitalization of the Company or change, or any development or event involving a prospective change, on the condition (financial or otherwise), business, properties, business prospects or results of operations good standing of the Company and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in Baseball Partnership. The opinion of such counsel for the Disclosure Package and Company shall state that the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representative so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(i) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq, (ii) a suspension or material limitation in trading in the Company’s securities on the Nasdaq, (iii) a general moratorium on commercial banking activities declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect opinion of any such event specified other counsel is in clause (iv) or (v) form satisfactory to such counsel and, in the judgment of the Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms their opinion, you and in the manner contemplated in the Prospectus.
(j) The Representative shall have received from each person listed on Schedule B hereto an executed lock-up letter agreement substantially to the effect set forth in the form attached hereto as Schedule A.
(k) The Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. All opinions, certificates, letters and documents mentioned above or elsewhere in this Agreement shall be deemed to be compliance with the provisions hereof only if they are justified in form and substance satisfactory to counsel for the Underwritersrelying thereon.
Appears in 1 contract
Samples: Underwriting Agreement (Cleveland Indians Baseball Co Inc)
Conditions of the Obligation of the Underwriters. The obligations of the several Underwriters hereunder to purchase and pay for the Firm Stock on the Closing Date and the Option Stock on the Second Closing Date shall be subject to the accuracy, when made and on each Delivery Date, of condition that the representations and warranties of made by the Company and the Selling Stockholders contained hereinShareholder herein are true and correct as of the date hereof and as of the respective Closing Dates, to the condition that the written statements of Company officers and the Selling Shareholder made pursuant to the provisions hereof are true and correct, and to the performance by each of the Company and the Selling Stockholders Shareholder of its their respective obligations hereunder, hereunder and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m.not later than 5:00 P.M., Eastern Cleveland time, on the date of this Agreement; , or at such later time as shall have been consented to by you, and prior to each Closing Date no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated instituted or threatened shall be pending, or to the knowledge of the Company or you, shall be contemplated by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative.
(b) The Underwriters You shall not have discovered and disclosed to advised the Company prior to or on such Delivery Date and the Selling Shareholder that (i) the Registration Statement, Statement or Prospectus or any amendment thereof or supplement thereto, thereto contains an untrue statement of a fact which, in the reasonable opinion of Calfxx, Xxlter & Grisxxxx XXX, counsel for the Underwriters, is material material, or omits to state a fact which, in the opinion of counsel for the Underwriterssuch counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, and (ii) any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Company, You shall have furnished to received as of each Closing Date (or prior thereto as indicated) the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.following:
(di) Xxxxxx Xxxxxxx Xxxxxx An opinion of Bakex & Brand, LLP, counsel for the Selling Stockholders, shall have furnished to the Representative their written opinionXostxxxxx XXX, dated the First Delivery Date, in form and substance satisfactory to the Representative.
(e) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.
(f) The Underwriters shall have received, on each of the date hereof and each Delivery Date, a letter dated the date hereof or such Delivery Date, as the case may be, in form and substance satisfactory to the Representative, from Ernst & Young LLP, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company and its consolidated subsidiaries contained in the Registration Statement, the Disclosure Package and the Prospectus, provided that the letter shall use a “cut-off date” not earlier than the third day prior to such Delivery Date.
(g) The Company will, on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer and Chief Financial Officer, dated such Delivery Daterespective Closing Dates, to the effect that:
(iaa) The representations Company has been duly organized and warranties is validly existing as a corporation in good standing under the laws of Ohio with corporate power and authority to own its properties and conduct its business as described in the Prospectus. Each of the Company's subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of its respective jurisdiction of incorporation, with power and authority to own and lease its properties and conduct its respective business.
(bb) The authorized capital stock of the Company is as set forth under "Capitalization" in the Prospectus; all issued and outstanding Common Shares of the Company (including the Stock to be sold by the Selling Shareholder hereunder) have been duly authorized and validly issued and are fully paid and nonassessable, and, to the best of the knowledge of such counsel, are free of preemptive rights of stockholders, rights of first refusal or similar rights. To the best of the knowledge of such counsel, except as described in the Prospectus, there are no outstanding options, warrants or other rights calling for the issuance of and there are no commitments, plans or arrangements to issue any shares of capital stock of the Company or any security convertible or exchangeable or exercisable for capital stock of the Company, and there are no holders of securities of the Company who, by reason of the filing of the Registration Statement, have the right (and have not waived such right) to request the Company to include in the Registration Statement securities owned by them, other than such rights as have been satisfied by the inclusion of securities in the Registration Statement.
(cc) The Common Shares of the Company to be issued and sold by the Company hereunder have been duly authorized, and, when issued, delivered and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable. No preemptive rights of security holders of the Company exist with respect to the issuance and sale of the stock by the Company pursuant to this Agreement. The Common Shares of the Company conform to the description thereof contained in the Prospectus and the certificates for the Common Shares of the Company (including the Stock) are in due and legal form under Ohio law.
(dd) The Company has the corporate power and authority to enter into and perform this Agreement, and to issue and deliver the Stock as provided herein. The execution, delivery and performance of this Agreement are true by the Company and correct, as if made on and as the Selling Shareholder have been duly authorized by all necessary action of the date Company and the Selling Shareholder. This Agreement constitutes the legal, valid and binding obligation of the Company and the Selling Shareholder, enforceable in accordance with its terms, except as rights to indemnity may be limited by public policy and applicable federal or state securities laws and except as enforcement thereof and provided that any reference therein may be limited by bankruptcy, insolvency or other laws of general application affecting the enforcement of creditors' rights or by general principles of equity.
(ee) The Registration Statement has become effective under the Act and, to the First Delivery Date shall be deemed to refer to best of the applicable Delivery Date on which knowledge of such certificate is delivered; 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 such Delivery Date;
(ii) No counsel, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened contemplated under the Securities Act;
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the . The Registration Statement and the Prospectus, and any amendments each amendment thereof or supplements supplement thereto contained (except for the financial statements and schedules and financial and statistical information included therein as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Rules and Regulations (except for the financial statements and schedules and financial and statistical information included therein as to which such counsel need express no opinion); the descriptions in the Registration Statement and the Prospectus of the Common Shares, statutes, regulations, leases, employee benefit plans, contracts and other documents are materially accurate and fairly present the information required to be included therein shown; and such counsel does not know of any legal or governmental proceedings which are required by the Securities Act or the Exchange Act and the applicable rules Rules and regulations Regulations to be described in the Prospectus and which are not described as so required, or of any leases, contracts or other documents of a character which are required by the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules Rules and regulations of the Commission thereunder, as the case may be; the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, did not and do not include any untrue statement of a material fact or omit to state a material fact required Regulations to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(v) Subsequent to the respective dates as of which information is given described in the Registration Statement, Statement or the Disclosure Package Prospectus or to be filed as exhibits to the Registration Statement and Prospectus, except which are not described and/or filed as set forth in so required.
(ff) The consummation of the Disclosure Package transactions herein contemplated and the Prospectusfulfillment of the terms hereof will not result in a breach of any of the terms and provisions of, there has not been or constitute a default under, any (a) transaction indenture, mortgage, deed of trust or event other agreement or instrument to which has a Material Adverse Effect, (b) change in the capitalization of the Company or any Subsidiary that of its subsidiaries is material a party and of which such counsel has knowledge after reasonable investigation, or any will, trust (constructive or other), agreement, judgment, decree, or other instrument to which the Selling Shareholder is a party or by which the Selling Shareholder is bound and of which such counsel has knowledge, or the Articles of Incorporation or By-laws of the Company, or the organizational documents of any of its subsidiaries, or, to the knowledge of such counsel, any order, rule or regulation applicable to the Company or any of its subsidiaries or the Selling Shareholder of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Company or any of its subsidiaries or the Selling Shareholder or the properties of any of them, except for such breaches or defaults as will not have a material adverse effect on the consummation of the transactions herein contemplated and the Subsidiaries taken fulfillment of the terms hereof by the Company or the Selling Shareholder.
(gg) All approvals, consents and orders of all governmental bodies required in connection with the valid authorization, issuance and sale of the Stock as a wholecontemplated by this Agreement have been obtained, except such as may be required under the securities or Blue Sky laws of any jurisdiction as to which such counsel need express no opinion.
(chh) To such counsel's knowledge, neither the Company nor any obligationof its subsidiaries is in violation of its Articles of Incorporation or its Code of Regulations or other organizational documents, contingent or otherwiseand, directly or indirectly incurred to the best of the knowledge of such counsel, no default exists by the Company or any Subsidiary that is material of its subsidiaries in the due performance and observance of any term, covenant or condition of any indenture, mortgage, deed of trust, loan agreement or other agreement filed as an exhibit to the Company Registration Statement and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by which the Company on or any class of its capital stocksubsidiaries is a party or by which the Company or any of its subsidiaries is bound.
(viii) On Based solely on such counsel's examination of the First Delivery share records of the Company, the Selling Shareholder is, as of the Closing Date, there shall have been furnished to you, as Representative the owner of the several Underwritersshares of the Stock sold by the Selling Shareholder pursuant to this Agreement and full legal right and power and all authorization and approval (if any), a certificate or certificatesrequired by law to sell, dated the First Delivery Date transfer and addressed to youdeliver such shares in accordance with this Agreement, signed by each Selling Stockholder or such Selling Stockholder’s Attorneys-in-Fact to the effect that the representations and warranties delivery of such Selling Stockholder contained shares against payment therefor as provided in this Agreement are true and correct as if made on and as of will vest good title to such shares in the date purchasers thereof, free and clear of any liens, claims, equities or encumbrances, assuming that such Selling Stockholder has complied with all purchasers purchase the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery Date.
(i) Neither the Company nor any of the Subsidiaries shall have sustained since the date of the latest audited financial statements included same in the Disclosure Package and the Prospectus any loss or interference with its business, otherwise than as set forth in the Disclosure Package and the Prospectus and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capitalization of the Company or change, or any development or event involving a prospective change, on the condition (financial or otherwise), business, properties, business prospects or results of operations of the Company and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representative so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(i) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq, (ii) a suspension or material limitation in trading in the Company’s securities on the Nasdaq, (iii) a general moratorium on commercial banking activities declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence good faith without notice of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause adverse claims. (iv) or (v) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(j) The Representative shall have received from each person listed on Schedule B hereto an executed lock-up letter agreement substantially to the effect set forth in the form attached hereto as Schedule A.
(kjj) The Company shall have furnished to is not an "investment company" or a company "controlled" by an "investment company" within the Representative such further information, certificates and documents as the Representative may reasonably request for the purposes of enabling it to pass upon the issuance and sale meaning of the Shares Investment Company Act of 1940, as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. All opinions, certificates, letters and documents mentioned above or elsewhere in this Agreement shall be deemed to be compliance with the provisions hereof only if they are in form and substance satisfactory to counsel for the Underwritersamended.
Appears in 1 contract
Samples: Underwriting Agreement (International Total Services Inc)
Conditions of the Obligation of the Underwriters. The obligations of the several Underwriters hereunder shall be subject to the accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Selling Stockholders contained herein, to the performance by each of the Company and the Selling Stockholders of its obligations hereunder, and to each of the following additional conditions:
(a) : The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act Regulations and in accordance with Section 4(c3(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Eastern time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative.
(b) Representatives. The Underwriters shall not have discovered and disclosed to the Company prior to or on such Delivery Date that (i) the Registration Statement, any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, thereto contains an any untrue statement of a fact whichthat, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, that is material and is required to be stated therein or is necessary to make the statements therein not misleading. Squire, Xxxxxxx & Xxxxxxx L.L.P., counsel for the Company, shall have furnished to the Representatives their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representatives, to the effect that: The Company has been duly formed and is validly existing and in good standing as a limited partnership under the laws of the State of Delaware, with the requisite power and authority (limited partnership and other) to own and lease its properties and conduct its business as described in the Prospectus; and the Company is duly qualified to do business as a foreign limited partnership in good standing in each jurisdiction and as of the dates listed on Exhibit A attached to such opinion. Each Subsidiary of the Company is validly existing and in good standing (except with respect to general partnerships) as a corporation, limited partnership or general partnership, as applicable, under the laws of the jurisdiction of its incorporation or formation, as applicable, with the requisite power and authority (corporate, limited partnership or general partnership, as applicable) to own and lease its properties and conduct its business as described in the Prospectus; and each Subsidiary is duly qualified to do business as a foreign corporation, limited partnership or general partnership, as applicable, in good standing (except with respect to general partnerships) in each jurisdiction and as of the dates listed on Exhibit B attached to such opinion. All of the outstanding shares of capital stock, limited partner interests or general partner interests, as applicable, of each Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable (except with respect to limited partner interests or general partner interests) and are owned by the Company, directly or indirectly through subsidiaries, to such counsel's knowledge, free and clear of all liens, encumbrances, equities or claims. The General Partner has been duly incorporated and is validly existing and in good standing under the laws of the State of Ohio, with the requisite power and authority (corporate and other) to own and lease its properties, to conduct its business and to act as general partner of the Company; and the General Partner is duly qualified to do business as a foreign corporation in good standing in each jurisdiction and as of the dates listed on Exhibit C attached to such opinion. The General Partner is the sole general partner of the Company and owns (of record) a 0.001% general partner interest in the Company; such general partner interest has been duly authorized and validly issued to the General Partner in accordance with the Partnership Agreement; the Partnership Agreement has been duly authorized, executed and delivered by the General Partner and is a valid and binding agreement of the General Partner, enforceable against the General Partner in accordance with its terms, except that enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent transfer and fraudulent conveyance, voidable preference, moratorium or other similar laws relating to or affecting creditors' rights and remedies generally and (ii) general equitable principles, whether such principles are considered in a proceeding at law or in equity; and the General Partner owns such general partner interest, to such counsel's knowledge, free and clear of all liens, encumbrances, equities or claims. This Agreement has been duly authorized, executed and delivered by the Company. The Company's authorized and outstanding partnership interests are as set forth in the Prospectus; all of the outstanding Units and the limited partner interests represented thereby have been duly authorized and validly issued, are fully paid and nonassessable (except as such nonassessability may be affected by the Delaware Act), and are free of any preliminary prospectuspreemptive rights or similar rights; all of the partnership interests of the Company and the Partnership Agreement conform in all material respects to the descriptions thereof contained in the Prospectus; and, any Issuer Free Writing Prospectus or except as described in the Prospectus, there are no outstanding options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligation into or exchange any securities for, partnership interests or other ownership interests in the Company or any security convertible or exchangeable or exercisable for partnership interests or other ownership interests in the Company. The Securities and the limited partner interests represented thereby have been duly authorized by the Company and, when issued and delivered against payment therefor in accordance with this Agreement, will be validly issued, fully paid and nonassessable (except as such nonassessability may be affected by the Delaware Act). The issuance and sale of the Securities will not be subject to any preemptive or similar rights and the Securities will conform to the description thereof in the Prospectus. The Registration Statement has been declared effective by the Commission under the Securities Act; to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for such purpose have been initiated or are pending or are contemplated or threatened by the Commission; and the Registration Statement and the Prospectus and each amendment or supplement theretoto the Registration Statement and the Prospectus (other than the financial statements and other financial data contained therein, contains as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Securities Act Regulations. No consent, approval, authorization, or order of, or filing or registration with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement, except such as has been obtained or made under the Securities Act and as may be required by state securities or "blue sky" laws. The issuance and sale of the Securities and the compliance by the Company with all of the provisions of 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 and provisions of, or constitute a default or, except as disclosed in the Prospectus, Repayment Event under (A) the partnership agreement, charter, by-laws, code of regulations or similar organizational documents of the Company or any of the Subsidiaries or the General Partner, as applicable, (B) any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument 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, or (C) any statute, law, rule or regulation of any governmental agency or body or, to such counsel's knowledge, any order of any court applicable to the Company or any of the Subsidiaries or any of their property, assets or operations, except, with respect to clause (B), for such conflicts, breaches, violations or defaults as would not, individually or in the aggregate, have a Material Adverse Effect. 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, required to register as an "investment company" as such term is defined under the Investment Company Act. To such counsel's knowledge, there no legal or governmental actions, suits or proceedings, pending or threatened, required to be described in the Prospectus under the Securities Act that are not adequately disclosed in the Prospectus. The opinion of Squire, Xxxxxxx & Xxxxxxx L.L.P. that is filed as Exhibit 8 to the Registration Statement is confirmed and the Underwriters may rely on such Opinion as if it were addressed to them. The statements contained in the Prospectus under the captions "Description of the Units," "Summary Description of Our Limited Partnership Agreement" and "Tax Considerations," insofar as such statements purport to summarize legal matters or provisions of the documents referred to therein, present accurate and fair summaries of such legal matters and provisions. Such counsel shall state that, although such counsel have not independently verified are not passing upon, and do not assume any responsibility for, the accuracy or completeness (except as and to the extent set forth in paragraph (xv) above) of the information contained in the Registration Statement and the Prospectus, they have participated in the preparation of the Registration Statement and the Prospectus; from time to time, such counsel have had discussions with officers, directors and employees of the Company, with representatives of Deloitte & Touche LLP and PricewaterhouseCoopers LLP, the independent accountants who examined the financial statements of the Company contained in the Registration Statement and the Prospectus, with representatives of the Underwriters and with counsel to the Underwriters; and nothing has come to such counsel's attention which would lead them to believe that the Registration Statement, at the time it became effective, contained an untrue statement of a material fact which, in the opinion of counsel for the Underwriters, is material or omits omitted to state a material fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading (it being understood that such counsel need express no opinion with respect to the financial statements or other financial data contained in the Registration Statement) or that the Prospectus, as of its date or at the First Delivery Date or the Optional Delivery Date, as the case may be, 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, not misleading.
misleading (c) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, it being understood that such counsel for the Company, shall have furnished need express no opinion with respect to the Representative their written financial statements or other financial data contained in the Prospectus). In rendering such opinion, dated such Delivery Datecounsel may rely (i) as to matters involving the application of laws of any jurisdiction other than the States of Delaware, in form Ohio and substance satisfactory California or the federal laws of the United States, to the Representative.
(d) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Selling Stockholders, shall have furnished to the Representative their written extent they deem proper and specified in such opinion, upon the opinion (which shall be dated the First Delivery Date, in form and substance satisfactory to Date or the Representative.
(e) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.
(f) The Underwriters shall have received, on each of the date hereof and each Delivery Date, a letter dated the date hereof or such Optional Delivery Date, as the case may be, shall be in form and substance satisfactory to the RepresentativeRepresentatives, from Ernst & Young LLP, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company and its consolidated subsidiaries contained in the Registration Statement, the Disclosure Package and the Prospectus, provided shall expressly state that the letter shall use a “cut-off date” not earlier than the third day prior to Representatives may rely on such Delivery Date.
(g) The Company will, on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer and Chief Financial Officer, dated such Delivery Date, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct, opinion as if made on it were addressed to them and as of the date thereof and provided that any reference therein to the First Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and any amendments or supplements thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, did not and do not include any 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, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(v) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vi) On the First Delivery Date, there shall have been furnished to you, as Representative of the several Underwriters, a certificate or certificates, dated the First Delivery Date and addressed to you, signed by each Selling Stockholder or such Selling Stockholder’s Attorneys-in-Fact to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery Date.
(i) Neither the Company nor any of the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Disclosure Package and the Prospectus any loss or interference with its business, otherwise than as set forth in the Disclosure Package and the Prospectus and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capitalization of the Company or change, or any development or event involving a prospective change, on the condition (financial or otherwise), business, properties, business prospects or results of operations of the Company and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representative so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(i) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq, (ii) a suspension or material limitation in trading in the Company’s securities on the Nasdaq, (iii) a general moratorium on commercial banking activities declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(j) The Representative shall have received from each person listed on Schedule B hereto an executed lock-up letter agreement substantially to the effect set forth in the form attached hereto as Schedule A.
(k) The Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request for the purposes Representatives) of enabling it to pass upon the issuance and sale other counsel of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. All opinions, certificates, letters and documents mentioned above or elsewhere in this Agreement shall be deemed good standing whom they believe to be compliance with the provisions hereof only if they reliable and who are in form and substance satisfactory to counsel for the UnderwritersUnderwriters and (ii) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
Appears in 1 contract
Conditions of the Obligation of the Underwriters. The obligations of the several Underwriters hereunder shall be subject to the accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Selling Stockholders contained herein, to the performance by each of the Company and the Selling Stockholders of its obligations hereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c3(c) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Eastern time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative.
(b) The Underwriters shall not have discovered and disclosed to the Company prior to or on such Delivery Date that (i) the Registration Statement, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading, and (ii) any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Xxxxxx Xxxxxxx Xxxxxx Baker, Donelson, Bearman, Xxxxxxxx & BrandXxxxxxxxx, LLPPC, counsel for the Company, shall have furnished to the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.
(d) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Selling Stockholders, shall have furnished to the Representative their written opinion, dated the First Delivery Date, in form and substance satisfactory to the Representative.
(e) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.
(fe) The Underwriters shall have received, on each of the date hereof and each Delivery Date, a letter dated the date hereof or such Delivery Date, as the case may be, in form and substance satisfactory to the Representative, from Ernst each of PricewaterhouseCoopers LLP and Deloitte & Young Touche LLP, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company and its consolidated subsidiaries and Autocam, respectively, contained in the Registration Statement, the Disclosure Package and the Prospectus, provided that the letter shall use a “cut-off date” not earlier than the third day prior to such Delivery Date.
(gf) The Company will, on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer and Chief Financial Officer, dated such Delivery Date, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct, as if made on and as of the date thereof and provided that any reference therein to the First Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and any amendments or supplements thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, did not and do not include any 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, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(v) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vig) On The Underwriters shall have received, on each of the First date hereof and each Delivery Date, there shall have been furnished to youa letter from the principal financial officer of the Company dated the date hereof or such Delivery Date, as Representative of the several Underwriterscase may be, a certificate or certificatesin form and substance satisfactory to the Representative, dated the First Delivery Date and addressed to you, signed by each Selling Stockholder or such Selling Stockholder’s Attorneys-in-Fact to the effect that the representations and warranties signer of such Selling Stockholder contained in this Agreement are true certificate is familiar with the accounting, operations and correct as if made on and as records systems of the date thereofCompany, certifying that certain statements and that items identified in pages of the documents of the Company referenced in such Selling Stockholder has complied with all the agreements certificate and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior attached thereto are, to the First Delivery Dateknowledge of the signer, accurate in all material respects and such other matters as the Underwriters shall reasonably request.
(i) Neither the Company nor any of the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Disclosure Package and the Prospectus any loss or interference with its business, otherwise than as set forth in the Disclosure Package and the Prospectus and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capitalization of the Company or change, or any development or event involving a prospective change, on the condition (financial or otherwise), business, properties, business prospects or results of operations of the Company and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representative so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(i) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on NASDAQ or the New York Stock Exchange, the American Stock Exchange or the Nasdaq, (ii) a suspension or material limitation in trading in the Company’s securities on the NasdaqNASDAQ, (iii) a general moratorium on commercial banking activities declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(j) The Representative shall have received from each person listed on Schedule Exhibit B hereto an executed lock-up letter agreement substantially to the effect set forth in the form attached hereto as Schedule Exhibit A.
(k) The Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein containedrequest. All opinions, certificates, letters and documents mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Nn Inc)
Conditions of the Obligation of the Underwriters. The obligations of the several Underwriters hereunder to purchase and pay for the Firm Stock on the Closing Date and the Option Stock on the Second Closing Date shall be subject to the accuracy, when made and on each Delivery Date, of condition that the representations and warranties made by the Company herein are true and correct as of the date hereof and as of the respective Closing Dates, to the condition that the written statements of Company officers made pursuant to the provisions hereof are true and the Selling Stockholders contained hereincorrect, and to the performance by each of the Company and the Selling Stockholders of its their obligations hereunder, hereunder and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m.not later than 5:00 P.M., Eastern Cleveland time, on the date of this Agreement; , or at such later time as shall have been consented to by you, and prior to each Closing Date no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated instituted or threatened shall be pending, or to the knowledge of the Company or you, shall be contemplated by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative.
(b) The Underwriters You shall not have discovered and disclosed to advised the Company prior to or on such Delivery Date that (i) the Registration Statement, Statement or Prospectus or any amendment thereof or supplement thereto, thereto contains an untrue statement of a fact which, in the reasonable opinion of Calfxx, Xxlter & Grisxxxx XXX, counsel for the Underwriters, is material material, or omits to state a fact which, in the opinion of counsel for the Underwriterssuch counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) You shall have received as of each Closing Date (or prior thereto as indicated) the following:
(i) An opinion of Jonex, Xxy, Reavxx & Xogux, xxted the respective Closing Dates, to the effect that:
(aa) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of Ohio with corporate power and authority to own its properties and conduct its business as described in the Prospectus.
(bb) The authorized capital stock of the Company is as set forth under "Capitalization" in the Prospectus; all issued and outstanding Common Shares of the Company have been duly authorized and validly issued, are free of preemptive rights of stockholders, rights of first refusal or similar rights and are fully paid and nonassessable. Except as described in the Prospectus, there are no outstanding options, warrants or other rights calling for the issuance of, and there are no commitments, plans or arrangements to issue any shares of capital stock of the Company or any security convertible or exchangeable or exercisable for capital stock of the Company. To the best of such counsel's knowledge, there are no holders of securities of the Company who, by reason of the filing of the Registration Statement have the right (and have not waived such right) to request the Company to include in the Registration Statement securities owned by them, other than such rights as have been satisfied by the inclusion of securities in the Registration Statement.
(cc) The Common Shares of the Company to be issued and sold by the Company hereunder have been duly authorized, and, when issued, delivered and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable. No preemptive rights of security holders of the Company exist with respect to the issuance and sale of the stock by the Company pursuant to this Agreement. The Common Shares of the Company conform to the description thereof contained in the Prospectus and the certificates for the Common Shares of the Company (including the Stock) are in due and legal form under Ohio law.
(dd) The Company has the corporate power and authority to enter into and perform this Agreement, and to issue and deliver the Stock as provided herein. The execution, delivery and performance of this Agreement by the Company has been duly authorized by all necessary action of the Company.
(ee) The Registration Statement has become effective under the Act and, to the best of 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 are pending or contemplated under the Act.
(ff) The consummation of the transactions herein contemplated and the fulfillment of the terms hereof will not result in a breach of any of the terms and provisions of, or constitute a default under, any material indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of its subsidiaries is a party and of which such counsel has knowledge after reasonable investigation, or the Articles of Incorporation or Code of Regulations of the Company, or the organizational documents of any of its subsidiaries, or, to the knowledge of such counsel, any order, rule or regulation binding upon the Company or any of its subsidiaries of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Company or any of its subsidiaries or the properties of any of them, except for such breaches or defaults as will not have a material adverse effect on the consummation of the transactions herein contemplated and the fulfillment of the terms hereof by the Company.
(gg) All approvals, consents and orders of all governmental bodies required in connection with the valid authorization, issuance and sale of the Stock as contemplated by this Agreement have been obtained, except such as may be required under the securities or Blue Sky laws of any jurisdiction as to which such counsel need express no opinion.
(hh) The Company is not required to be registered as an "investment company" or is not a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(ii) Such counsel is of the opinion that the statements contained in the Prospectus under the caption "Description of Capital Stock" and Item 15 in part II of the Registration Statement, insofar as they purport to summarize the provisions of the documents referred to therein, present fair summaries of such provisions.
(jj) In the course of the preparation by the Company of the Registration Statement and the Prospectus, such counsel participated in discussions with officers, directors and employees of the Company, representatives of Deloitte & Touche LLP, the independent accountants who examined certain of the financial statements of the Company and its subsidiaries included in the Registration Statement and the Prospectus, counsel for the Underwriters and your representatives concerning the information contained in the Registration Statement and Prospectus and the proposed responses to various items in Form S-1 under the Act. Based upon such counsel's examination of the Registration Statement and the Prospectus, such counsel's investigations made in connection with the preparation of the Registration Statement and the Prospectus and such counsel's participation in the discussions referred to above, such counsel is of the opinion that the Registration Statement and the Prospectus (in each case, except for (i) the financial statements, financial schedules and other financial and statistical information included therein and (ii) the information referred to under the caption "Experts" as having been included therein on the authority of Deloitte & Touche LLP, as experts, as to which such counsel expresses no opinion) at the time the Registration Statement became effective under the Act, and at the time the Prospectus was filed pursuant to Rule 424(b) under the Act, respectively, complied as to form in all material respects with the Act and the rules and regulations thereunder.
(kk) Such counsel does not know of any preliminary prospectuslitigation or any governmental proceedings or investigations, pending or threatened, required to be described in the Prospectus that are not described as required, or of any Issuer Free Writing contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(ll) Such counsel has not independently verified and is not passing upon, and does not assume any responsibility for the accuracy, completeness, or fairness of the information contained in the Registration Statement and Prospectus, except and as to the extent set forth in paragraph (ii) above with respect to the description of the Common Shares contained in the Prospectus. Based upon such counsel's examinations, investigations and participation in the discussions described above, however, no facts have come to such counsel's attention that cause such counsel to believe that the Registration Statement (except for (i) the financial statements, financial schedules and other financial and statistical information included therein and (ii) the information referred to under the caption "Experts" as having been included therein on the authority of Deloitte & Touche LLP, as experts, as to which such counsel expresses no view), at the time it became effective 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 any amendment that the Prospectus (with the foregoing exceptions) as of its date or supplement thereto, as of the date hereof contained or contains any untrue statement of a material fact which, in the opinion of counsel for the Underwriters, is material or omitted or omits to state a material fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
. In rendering such opinion, such counsel may (cA) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Company, shall have furnished limit its opinion to the Representative their written Federal laws of the United States of America and the laws of the State of Ohio; (B) rely as to matters involving the application of laws other than the laws of the United States and jurisdictions in which they are admitted, to the extent specified in such opinion, dated such Delivery Dateif at all, in form upon an opinion or opinions of other counsel, familiar with the applicable laws; and substance satisfactory (C) rely as to the Representative.
(d) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Selling Stockholders, shall have furnished to the Representative their written opinion, dated the First Delivery Date, in form and substance satisfactory to the Representative.
(e) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.
(f) The Underwriters shall have received, matters of fact on each certificates of officers of the date hereof Company and each Delivery Date, a letter dated certificates or other written statements of officers of departments of various jurisdictions having custody of documents respecting the date hereof corporate existence or such Delivery Date, as the case may be, in form and substance satisfactory to the Representative, from Ernst & Young LLP, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information good standing of the Company and its consolidated subsidiaries contained in subsidiaries. The opinion of such counsel for the Registration Statement, the Disclosure Package and the Prospectus, provided Company shall state that the letter shall use a “cut-off date” not earlier than the third day prior to such Delivery Date.
(g) The Company will, on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer and Chief Financial Officer, dated such Delivery Date, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct, as if made on and as of the date thereof and provided that any reference therein to the First Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and any amendments or supplements thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, did not and do not include any 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, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(v) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vi) On the First Delivery Date, there shall have been furnished to you, as Representative of the several Underwriters, a certificate or certificates, dated the First Delivery Date and addressed to you, signed by each Selling Stockholder or such Selling Stockholder’s Attorneys-in-Fact to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery Date.
(i) Neither the Company nor any of the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Disclosure Package and the Prospectus any loss or interference with its business, otherwise than as set forth in the Disclosure Package and the Prospectus and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capitalization of the Company or change, or any development or event involving a prospective change, on the condition (financial or otherwise), business, properties, business prospects or results of operations of the Company and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representative so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(i) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq, (ii) a suspension or material limitation in trading in the Company’s securities on the Nasdaq, (iii) a general moratorium on commercial banking activities declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect opinion of any such event specified other counsel is in clause (iv) or (v) form satisfactory to such counsel and, in the judgment of the Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms their opinion, you and in the manner contemplated in the Prospectus.
(j) The Representative shall have received from each person listed on Schedule B hereto an executed lock-up letter agreement substantially to the effect set forth in the form attached hereto as Schedule A.
(k) The Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. All opinions, certificates, letters and documents mentioned above or elsewhere in this Agreement shall be deemed to be compliance with the provisions hereof only if they are justified in form and substance satisfactory to counsel for the Underwritersrelying thereon.
Appears in 1 contract
Conditions of the Obligation of the Underwriters. The obligations of the several Underwriters hereunder to purchase and pay for the Firm Stock on the Closing Date and the Option Stock on the Second Closing Date shall be subject to the accuracy, when made and on each Delivery Date, of condition that the representations and warranties made by the Company herein are true and correct as of the date hereof and as of the respective Closing Dates, to the condition that the written statements of Company officers made pursuant to the provisions hereof are true and the Selling Stockholders contained hereincorrect, and to the performance by each of the Company and the Selling Stockholders of its their obligations hereunder, hereunder and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m.not later than 5:00 P.M., Eastern Cleveland time, on the date of this Agreement; , or at such later time as shall have been consented to by you, and prior to each Closing Date no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated instituted or threatened shall be pending, or to the knowledge of the Company or you, shall be contemplated by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative.
(b) The Underwriters You shall not have discovered and disclosed to advised the Company prior to or on such Delivery Date that (i) the Registration Statement, Statement or Prospectus or any amendment thereof or supplement thereto, thereto contains an untrue statement of a fact which, in the reasonable opinion of Calfxx, Xxlter & Grisxxxx XXX, counsel for the Underwriters, is material material, or omits to state a fact which, in the opinion of counsel for the Underwriterssuch counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, and (ii) any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Company, You shall have furnished to received as of each Closing Date (or prior thereto as indicated) the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.following:
(di) Xxxxxx Xxxxxxx Xxxxxx An opinion of Jonex, Xxy, Reavxx & BrandXogux, LLP, counsel for xxted the Selling Stockholders, shall have furnished to the Representative their written opinion, dated the First Delivery Date, in form and substance satisfactory to the Representative.
(e) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.
(f) The Underwriters shall have received, on each of the date hereof and each Delivery Date, a letter dated the date hereof or such Delivery Date, as the case may be, in form and substance satisfactory to the Representative, from Ernst & Young LLP, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company and its consolidated subsidiaries contained in the Registration Statement, the Disclosure Package and the Prospectus, provided that the letter shall use a “cut-off date” not earlier than the third day prior to such Delivery Date.
(g) The Company will, on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer and Chief Financial Officer, dated such Delivery Daterespective Closing Dates, to the effect that:
(aa) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of Ohio with corporate power and authority to own its properties and conduct its business as described in the Prospectus. Each of the Company's subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of its respective jurisdiction of incorporation, with power and authority to own and lease its properties and conduct its respective business. The Company and each of its subsidiaries are duly qualified to do business as a foreign corporation and are in good standing in all jurisdictions (i) The representations and warranties in which the conduct of the Company in this Agreement are true and correctbusiness, as if made on and as of presently being conducted requires such qualification (except for those jurisdictions in which the date thereof and provided that any reference therein failure to so qualify will not in the First Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose aggregate have been instituted or are pending or threatened under the Securities Act;
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and any amendments or supplements thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, did not and do not include any 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, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(v) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of the Company or any Subsidiary that is material to adverse effect on the Company and the Subsidiaries taken as a whole, (cits subsidiaries) any obligation, contingent or otherwise, directly or indirectly incurred by the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vi) On the First Delivery Date, there shall have been furnished to you, as Representative of the several Underwriters, a certificate or certificates, dated the First Delivery Date and addressed to you, signed by each Selling Stockholder or such Selling Stockholder’s Attorneys-in-Fact to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery Date.
(i) Neither the Company nor any of the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Disclosure Package and the Prospectus any loss or interference with its business, otherwise than as set forth in the Disclosure Package and the Prospectus and (ii) since the respective dates as of in which information is given in the Prospectus, there shall not have been any change in the capitalization of the Company or change, such subsidiary owns or any development or event involving a prospective change, on the condition (financial or otherwise), business, properties, business prospects or results of operations of the Company and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representative so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Disclosure Package and the Prospectusleases real property.
(i) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq, (ii) a suspension or material limitation in trading in the Company’s securities on the Nasdaq, (iii) a general moratorium on commercial banking activities declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(j) The Representative shall have received from each person listed on Schedule B hereto an executed lock-up letter agreement substantially to the effect set forth in the form attached hereto as Schedule A.
(k) The Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. All opinions, certificates, letters and documents mentioned above or elsewhere in this Agreement shall be deemed to be compliance with the provisions hereof only if they are in form and substance satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of the Obligation of the Underwriters. The obligations of the several Underwriters hereunder shall be subject to the accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Selling Stockholders CareTrust contained herein, to the performance by each of the Company and the Selling Stockholders CareTrust of its obligations hereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c3(c) hereof; all material required to be filed by the Company CareTrust pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Eastern time, on the date of this Agreement; no . No stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Securities Act shall have been initiated be pending or are, to the best knowledge of CareTrust, threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated be pending or are, to the best knowledge of CareTrust, threatened by the Commission; no order suspending the qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or are, to the best knowledge of CareTrust, threatened by the authorities of any such jurisdiction; all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives; and after the date hereof no amendment or supplement to the Registration Statement or the Prospectus relating to the Shares shall have been filed unless a copy thereof was first submitted to the Representatives and the Representatives did not object thereto.
(b) The Underwriters shall not have discovered and disclosed to the Company CareTrust prior to or on such Delivery Date that (i) the Registration Statement, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading, and (ii) any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Xxxxxx Xxxxxxx Xxxxxx O’Melveny & Brand, Xxxxx LLP, counsel for CareTrust and the CompanyOperating Partnership, shall have furnished to the Representative Representatives their written opinion and negative assurance letter, dated such Delivery Date, in form and substance satisfactory to the Representatives.
(d) Xxxxxxxx & Xxxxx LLP, counsel for CareTrust and the Operating Partnership, shall have furnished to the Representatives their written opinion regarding certain tax matters, dated such Delivery Date, in form and substance satisfactory to the Representatives.
(e) DLA Piper LLP (US), special Maryland counsel for CareTrust, shall have furnished to the Representatives their written opinion, dated such Delivery Date, in form and substance satisfactory to the RepresentativeRepresentatives.
(d) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Selling Stockholders, shall have furnished to the Representative their written opinion, dated the First Delivery Date, in form and substance satisfactory to the Representative.
(ef) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative Representatives their written opinion, dated such Delivery Date, in form and substance satisfactory to the RepresentativeRepresentatives.
(fg) The Underwriters shall have received, on each of the date hereof and each Delivery Date, a letter dated the date hereof or such Delivery Date, as the case may be, in form and substance satisfactory to the RepresentativeRepresentatives, from Ernst Deloitte & Young LLP, Touche LLP containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company and its consolidated subsidiaries CareTrust, as applicable, contained in the Registration Statement, the Disclosure Package and the Prospectus, provided that the letter shall use a “cut-off date” not earlier than the third day prior to such Delivery Date.
(gh) The Company CareTrust and the Operating Partnership will, on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer an executive officer of CareTrust and Chief Financial Officeran executive officer of the Operating Partnership, dated such Delivery Date, to the effect that:
(i) The representations and warranties of each of CareTrust and the Company Operating Partnership, as applicable, in this Agreement are true and correct, as if made on and as of the date thereof and provided that any reference therein to the First Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; and each of CareTrust and the Company Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose or pursuant to Section 8A of the Securities Act have been instituted or are pending or are, to the best knowledge of CareTrust, threatened under the Securities Act;
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or are, to the best knowledge of CareTrust, threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and any amendments or supplements thereto thereto, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, did not and do not include any 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, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(v) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of CareTrust, the Company Operating Partnership or any Subsidiary that is material to CareTrust, the Company Operating Partnership and the Subsidiaries taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by CareTrust, the Company Operating Partnership or any Subsidiary that is material to CareTrust, the Company Operating Partnership and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company CareTrust on any class of its capital stock.
(vii) On CareTrust will, on each of the First date hereof and each Delivery Date, there shall have been furnished deliver to you, as Representative the Underwriters a certificate of the several Underwriters, a certificate or certificatesChief Financial Officer of CareTrust, dated the First Delivery Date and addressed to you, signed by each Selling Stockholder date hereof or such Selling Stockholder’s Attorneys-in-Fact Delivery Date, in form and substance satisfactory to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery DateRepresentatives.
(i) Neither CareTrust nor the Company Operating Partnership nor any of the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Disclosure Package and the Prospectus any loss or interference with its business, otherwise than as set forth in the Disclosure Package and the Prospectus and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capitalization of the Company CareTrust or change, or any development or event involving a prospective change, on the condition (financial or otherwise), business, properties, business prospects or results of operations of CareTrust, the Company Operating Partnership and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representative Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(ik) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the American Stock Exchange NYSE or the NasdaqNasdaq Global Select Market, (ii) a suspension or material limitation in trading in the CompanyCareTrust’s securities on the NasdaqNYSE, (iii) a general moratorium on commercial banking activities declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representative Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(jl) The Representative Representatives shall have received from each person listed on Schedule Exhibit B hereto an executed lock-up letter agreement substantially to the effect set forth in the form attached hereto as Schedule Exhibit A.
(km) The Company Each of CareTrust and the Operating Partnership shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein containedrequest. All opinions, certificates, letters and documents mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of the Obligation of the Underwriters. The obligations of the several Underwriters hereunder to purchase and pay for the Firm Stock on the Closing Date and the Option Stock on the Second Closing Date shall be subject to the accuracy, when made and on each Delivery Date, of condition that the representations and warranties of made by the Company and the Selling Stockholders contained hereinherein are true and correct as of the date hereof and as of the respective Closing Dates, to the condition that the written statements of Company officers made pursuant to the provisions hereof are true and correct, and to the performance by each of the Company and the Selling Stockholders of its their respective obligations hereunder, hereunder in all material respects and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m.not later than 5:00 P.M., Eastern Cleveland time, on the date of this Agreement; , or at such later time as shall have been consented to by you, and prior to each Closing Date no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated instituted or threatened shall be pending, or to the knowledge of the Company or you, shall be contemplated by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative.
(b) The Underwriters You shall not have discovered and disclosed to advised the Company prior to or on such Delivery Date that (i) the Registration Statement, Statement or Prospectus or any amendment thereof or supplement thereto, thereto contains an untrue statement of a fact which, in the reasonable opinion of Xxxxxx, Halter & Xxxxxxxx LLP, counsel for the Underwriters, is material material, or omits to state a fact which, in the opinion of counsel for the Underwriterssuch counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) You shall have received as of each Closing Date (or prior thereto as indicated) the following:
(i) An opinion of Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP, dated the respective Closing Dates, to the effect that:
(aa) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of Delaware with corporate power and authority to own its properties and conduct its business as described in the Prospectus. Each of the Company's subsidiaries organized or incorporated under the laws of any state of the United States of America (the "Domestic Subsidiaries") has been duly incorporated or duly formed, as the case may be, and is validly existing as a corporation, limited liability company, limited partnership or other entity, as the case may be, in good standing under the laws of its respective jurisdiction of incorporation or organization, with power and authority to own and lease its properties and conduct its respective business. The Company and each of its Domestic Subsidiaries are duly qualified to do business as a foreign entity and are in good standing in all jurisdictions (i) in which the conduct of business, as presently being conducted requires such qualification (except for those jurisdictions in which the failure to so qualify will not in the aggregate have a material adverse effect on the Company and its subsidiaries, taken as a whole) and (ii) any preliminary prospectusin which the Company or such subsidiary owns or leases real property (except for those jurisdictions in which the failure to so qualify will not in the aggregate have a material adverse effect on the Company and its subsidiaries).
(bb) As regards the Company's subsidiaries other than the Domestic Subsidiaries (the "Foreign Subsidiaries") such counsel has no reason to believe that each such Foreign Subsidiaries is not duly incorporated or duly formed, any Issuer Free Writing Prospectus as the case may be, and validly existing and in good standing under the laws of its respective jurisdiction of organization, with the power and authority to own and lease its properties and conduct its respective business. The Domestic Subsidiaries and the Foreign Subsidiaries are referred to together herein as "Subsidiaries."
(cc) All issued and outstanding Common Stock of the Company have been duly authorized and validly issued, is free of preemptive rights of stockholders, rights of first refusal or similar rights and is fully paid and nonassessable. Except as described in the Prospectus, there are no outstanding options, warrants or other rights calling for the issuance of, and there are no commitments, plans or arrangements to issue any shares of capital stock of the Company or any amendment security convertible or supplement theretoexchangeable or exercisable for capital stock of the Company. There are no holders of securities of the Company who, by reason of the filing of the Registration Statement have the right (and have not waived such right) to request the Company to include in the Registration Statement securities owned by them.
(dd) The shares of Common Stock of the Company to be issued and sold by the Company hereunder have been duly authorized, and, when issued, delivered and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable. The shares of Common Stock of the Company to be sold by the Selling Stockholders hereunder have been duly authorized and validly issued, and are fully paid and nonassessable. The Company has not granted any preemptive rights of security holders of the Company with respect to the issuance and sale of the stock by the Company and the Selling Stockholders pursuant to this Agreement. The Common Stock of the Company conforms to the description thereof incorporated by reference in the Prospectus and the certificates for the Common Stock of the Company (including the Stock) are in due and legal form under Delaware law.
(ee) The Company has the corporate power and authority to enter into and perform this Agreement, and to issue and deliver the Stock as provided herein. The execution, delivery and performance of this Agreement by the Company has been duly authorized by all necessary action of the Company.
(ff) All the issued shares of capital stock or equity interests of each Domestic Subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and the portion of such shares of capital stock or equity interests owned by the Company is free and clear of all liens, encumbrances, equities, security interests, or claims, except as disclosed in the Prospectus; and there are no outstanding options, warrants or other rights calling for the issuance of, and there are no commitments, plans or arrangements to issue, any shares of capital stock or equity interests of any Subsidiary or any security convertible or exchangeable or exercisable for capital stock or equity interests of any Subsidiary; except as disclosed in the Registration Statement and except for the shares of stock or equity interests of each Subsidiary owned by the Company, neither the Company nor any Subsidiary owns, directly or indirectly, any shares of capital stock of any corporation or has any equity interest in any firm, partnership, joint venture, association, limited liability company, limited partnership or other entity.
(gg) The Registration Statement has become effective under the Act and, to the best of 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 are pending or contemplated under the Act.
(hh) The consummation of the transactions herein contemplated and the fulfillment of the terms hereof will not result in a breach of any of the terms and provisions of, or constitute a default under, any material indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of its Subsidiaries is a party and of which such counsel has knowledge after reasonable investigation, or the Certificate of Incorporation or Bylaws of the Company, or the organizational documents of any of its Subsidiaries, or, to the knowledge of such counsel, any order, rule or regulation binding upon the Company or any of its Subsidiaries of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Company or any of its Subsidiaries or the properties of any of them, except for such breaches or defaults as will not have a material adverse effect on the consummation of the transactions herein contemplated and the fulfillment of the terms hereof by the Company.
(ii) All approvals, consents and orders of all governmental bodies required in connection with the valid authorization, issuance and sale of the Stock as contemplated by this Agreement have been obtained, except such as may be required under the securities or Blue Sky laws of any jurisdiction as to which such counsel need express no opinion.
(jj) To such counsel's knowledge, neither the Company nor any of its Subsidiaries is in violation of its Certificate of Incorporation or its Bylaws or other organizational documents, and no default exists by the Company or any of its Subsidiaries in the due performance and observance of any term, covenant or condition of any agreement material to the Company and its Subsidiaries to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound and which is filed as an exhibit to the Registration Statement or incorporated by reference therein.
(kk) The Company is not required to be registered as an "investment company" or is not a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(ll) The statements contained in the amended registration statement on Form 8-A/A, filed with the Commission on November 22, 2002, which is incorporated by reference in the Prospectus insofar as they purport to summarize the provisions of the documents referred to therein, present fair summaries of such provisions.
(mm) In the course of the preparation by the Company of the Registration Statement and the Prospectus, such counsel participated in discussions with officers, directors and employees of the Company, representatives of KPMG, LLP and PricewaterhouseCoopers LLP, the independent accountants who examined certain of the financial statements of the Company and its Subsidiaries included in the Registration Statement and the Prospectus, counsel for the Underwriters and your representatives concerning the information contained in the Registration Statement and Prospectus and the proposed responses to various items in Form S-3 under the Act. Based upon such counsel's examination of the Registration Statement and the Prospectus, such counsel's investigations made in connection with the preparation of the Registration Statement and the Prospectus and such counsel's participation in the discussions referred to above, such counsel is of the opinion that the Registration Statement and the Prospectus (in each case, except for (i) the financial statements, financial schedules and other financial and statistical information included therein and (ii) the information referred to under the caption "Experts" as having been included therein on the authority of KPMG, LLP and PricewaterhouseCoopers LLP, as experts, as to which such counsel expresses no opinion) at the time the Registration Statement became effective under the Act, and at the time the Prospectus was filed pursuant to the Act, respectively, complied as to form in all material respects with the Act and the rules and regulations thereunder.
(nn) Such counsel does not know of any litigation or any governmental proceedings or investigations, pending or threatened, before any court or before or by any public, regulatory or governmental body or board against or involving the business or property of the Company or any of its Subsidiaries required to be described in the Prospectus that are not described as required, or of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(oo) To the best of such counsel's knowledge, the Company and its Subsidiaries hold and are in compliance with all necessary material authorizations, approvals, orders, licenses, certificates and permits of and from all governmental regulatory officials and bodies (collectively, the "licenses") required for the conduct of its business as described in the Prospectus, except where the failure to so hold or comply with any license would not have, individually or in the aggregate, a material adverse effect on the business, condition (financial or other) or results of operations of the Company and its subsidiaries, taken as a whole.
(pp) Such counsel has not independently verified and is not passing upon, and does not assume any responsibility for the accuracy, completeness, or fairness of the information contained in the Registration Statement and Prospectus, except and as to the extent set forth in paragraph (ll) above with respect to the description of the Common Stock incorporated by reference into the Prospectus. Based upon such counsel's examinations, investigations and participation in the discussions described above, however, no facts have come to such counsel's attention that cause such counsel to believe that the Registration Statement (except for (i) the financial statements and the notes thereto and the auditors' reports thereon, financial schedules and other financial and statistical information included therein and (ii) the information referred to under the caption "Experts" as having been included therein on the authority of KPMG, LLP and PricewaterhouseCoopers LLP, as experts, as to which such counsel expresses no view), at the time it became effective and at the Closing Date or the Second Closing Date, as the case may be, 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 that the Prospectus (with the foregoing exceptions) as of the date thereof and as of the Closing Date or the Second Closing Date, as the case may be, contained or contains any untrue statement of a material fact which, in the opinion of counsel for the Underwriters, is material or omitted or omits to state a material fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
. In rendering such opinion, such counsel may (cA) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Company, shall have furnished limit its opinion to the Representative their written Federal laws of the United States and the laws of the State of Delaware; (B) rely as to matters involving the application of laws other than the laws of the United States and jurisdictions in which they are admitted, to the extent specified in such opinion, dated such Delivery Dateif at all, in form upon an opinion or opinions of other counsel, familiar with the applicable laws; and substance satisfactory (C) rely as to the Representative.
(d) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Selling Stockholders, shall have furnished to the Representative their written opinion, dated the First Delivery Date, in form and substance satisfactory to the Representative.
(e) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.
(f) The Underwriters shall have received, matters of fact on each certificates of officers of the date hereof Company and each Delivery Date, a letter dated certificates or other written statements of officers of departments of various jurisdictions having custody of documents respecting the date hereof corporate existence or such Delivery Date, as the case may be, in form and substance satisfactory to the Representative, from Ernst & Young LLP, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information good standing of the Company and its consolidated subsidiaries contained in subsidiaries. The opinion of such counsel for the Registration Statement, the Disclosure Package and the Prospectus, provided Company shall state that the letter shall use a “cut-off date” not earlier than the third day prior to such Delivery Date.
(g) The Company will, on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer and Chief Financial Officer, dated such Delivery Date, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct, as if made on and as of the date thereof and provided that any reference therein to the First Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and any amendments or supplements thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, did not and do not include any 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, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(v) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vi) On the First Delivery Date, there shall have been furnished to you, as Representative of the several Underwriters, a certificate or certificates, dated the First Delivery Date and addressed to you, signed by each Selling Stockholder or such Selling Stockholder’s Attorneys-in-Fact to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery Date.
(i) Neither the Company nor any of the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Disclosure Package and the Prospectus any loss or interference with its business, otherwise than as set forth in the Disclosure Package and the Prospectus and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capitalization of the Company or change, or any development or event involving a prospective change, on the condition (financial or otherwise), business, properties, business prospects or results of operations of the Company and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representative so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(i) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq, (ii) a suspension or material limitation in trading in the Company’s securities on the Nasdaq, (iii) a general moratorium on commercial banking activities declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect opinion of any such event specified other counsel is in clause (iv) or (v) form satisfactory to such counsel and, in the judgment of the Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms their opinion, you and in the manner contemplated in the Prospectus.
(j) The Representative shall have received from each person listed on Schedule B hereto an executed lock-up letter agreement substantially to the effect set forth in the form attached hereto as Schedule A.
(k) The Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. All opinions, certificates, letters and documents mentioned above or elsewhere in this Agreement shall be deemed to be compliance with the provisions hereof only if they are justified in form and substance satisfactory to counsel for the Underwritersrelying thereon.
Appears in 1 contract
Samples: Underwriting Agreement (Nn Inc)
Conditions of the Obligation of the Underwriters. The obligations of the several Underwriters hereunder shall be subject to the accuracy, when made and on each as of the Delivery Date, of the representations and warranties of the Company and the Selling Stockholders Guarantors contained herein, to the performance by each of the Company and the Selling Stockholders Guarantors of its their obligations hereunder, and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act Regulations and in accordance with Section 4(c3(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Regulations shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, including, without limitation, the Rule 462(bfinal term sheet contemplated by Section 3(b) Registration Statement shall have become effective by 10:00 p.m., Eastern time, on the date of this Agreementhereof; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act against the Company or any of the Guarantors or related to the offering of the Securities shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the RepresentativeRepresentatives.
(b) The Underwriters shall not have discovered and disclosed to the Company prior to or on such Delivery Date that (i) the Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus, or the Prospectus or any amendment or supplement thereto, thereto contains an any untrue statement of a fact whichthat, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, that is material and is required to be stated therein or is necessary to make the statements therein not misleading, and (ii) any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLPXxxxx Day, counsel for the Company, shall have furnished to the Representative Representatives their written opinion, dated such the Delivery Date, addressed to the Underwriters and in form and substance satisfactory to the RepresentativeRepresentatives.
(d) Xxxxxx Xxxxxxx Xxxxxx & BrandXxxxxxx, LLP, Nevada counsel for the Selling StockholdersCompany, shall have furnished to the Representative Representatives their written opinion, dated the First Delivery Date, addressed to the Underwriters and in form and substance satisfactory to the RepresentativeRepresentatives.
(e) Xxxxx DayXxxxxxx Coie, Washington counsel for the Company, shall have furnished to the Representatives their written opinion, dated the Delivery Date, addressed to the Underwriters and in form and substance satisfactory to the Representatives.
(f) Xxxxxxxx Xxxx LLP, counsel for the Underwriters, shall have furnished to the Representative Representatives their written opinion, dated such the Delivery Date, in form and substance satisfactory to the RepresentativeRepresentatives.
(fg) The Underwriters shall have received, on each of the date hereof and each the Delivery Date, a letter dated the date hereof or such the Delivery Date, as the case may beapplicable, in form and substance satisfactory to the RepresentativeRepresentatives, from Ernst & Young LLP, LLP containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company Parent and its consolidated subsidiaries contained in the Registration Statement, the Disclosure Package and the Prospectus, provided that the letter shall use a “cut-off date” not earlier than the third day prior to such Delivery Date.
(gh) The Company will, on each Delivery Date, deliver Parent shall have furnished to the Underwriters a certificate of its certificate, dated the Delivery Date, executed by the Chief Executive Officer and the Chief Financial Officer, dated such Delivery DateOfficer of the Parent, to the effect that:
(i) The representations representations, warranties and warranties agreements of the Company and the Guarantors in Section 1 of this Agreement are true and correct, correct as if made on of the date given and as of the date thereof and provided that any reference therein to the First Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto part thereof has been issued and no proceedings for that purpose have been instituted or are pending or threatened pursuant to Section 8A under the Securities ActAct against the Company or any of the Guarantors or related to the offering of the Securities have been initiated or threatened by the Commission;
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and any amendments or supplements thereto thereto, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, did not and do not include any 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, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(v) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package Time of Sale Prospectus and Prospectus, except as set forth in the Disclosure Package Time of Sale Prospectus and the Prospectus, neither the Company nor any of the Guarantors has sustained any loss or interference with its business material to the Company and the Guarantors considered as a whole, and there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of the Company or any Subsidiary of the Guarantors that is material to the Company and the Subsidiaries Guarantors taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by the Company or any Subsidiary Guarantors that is material to the Company and the Subsidiaries Guarantors taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company Parent on any class of its capital stock.
(vi) On , except dividends in the First Delivery Date, there shall have been furnished to you, as Representative ordinary course of the several Underwriters, a certificate or certificates, dated the First Delivery Date business and addressed to you, signed by each Selling Stockholder or such Selling Stockholder’s Attorneys-in-Fact to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied consistent with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery Datepast practice.
(i) Neither the Company nor any of the Subsidiaries Guarantors shall have sustained since the date of the latest audited financial statements included in the Disclosure Package Time of Sale Prospectus and the Prospectus any loss or interference with its business, otherwise than as set forth or contemplated in the Disclosure Package Time of Sale Prospectus and the Prospectus Prospectus, and (ii) since the respective dates as of which information is given in the Time of Sale Prospectus, and the Prospectus, there shall not have been any material adverse change in the capitalization of the Company or change, or any development or event involving a prospective material adverse change, on whether or not arising from transactions in the ordinary course of business, in or affecting (A) the business, condition (financial or otherwise), business, properties, business prospects or results of operations operations, stockholders’ equity, properties or prospects of the Company Parent and the Subsidiariesits subsidiaries, individually or taken as a whole, otherwise than as set forth or contemplated in (B) the Disclosure Package and long-term or short-term debt or capital stock of the ProspectusCompany or any of the Guarantors, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representative Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares Securities being delivered on such the Delivery Date on the terms and in the manner contemplated in the Disclosure Package Time of Sale Prospectus and the Prospectus.
(j) After the date hereof, (i) no downgrading shall have occurred in the rating accorded the debt securities of the Company or any of the Guarantors by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the debt securities of the Company or any of the Guarantors.
(k) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the American Stock Exchange NYSE Amex or the NASDAQ Stock Market (“Nasdaq, ”); (ii) a suspension or material limitation in trading in the CompanyParent’s securities on the Nasdaq, ; (iii) a general moratorium on commercial banking activities declared by United States federal or New York or Delaware Ohio state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, ; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war war; or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representative Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares Securities being delivered on such the Delivery Date on the terms and in the manner contemplated in the Prospectus.
(j) The Representative shall have received from each person listed on Schedule B hereto an executed lock-up letter agreement substantially to the effect set forth in the form attached hereto as Schedule A.
(kl) The Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein containedrequest. All opinions, certificates, letters and documents mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Cintas Corp)
Conditions of the Obligation of the Underwriters. The respective obligations of the several Underwriters hereunder shall be subject to the accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Selling Stockholders contained herein, to the performance by each of the Company and the Selling Stockholders of its obligations hereunder, and to each of the following terms and additional conditions:
(a) The Prospectus shall have been timely filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c3(a) hereofhereto; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed complied with the Commission within the all filing requirements applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Eastern time, on any Issuer Free Writing Prospectus used or referred to after the date of this Agreementhereof; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated preventing or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings proceeding or examination for that such purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with to the reasonable satisfaction of the Representativewith.
(b) The Underwriters No Underwriter shall not have discovered and disclosed to the Company on or prior to or on such Delivery Date that (i) the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriterssuch counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Shares, the Registration Statement, each preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Each of (i) Xxxxxxxx & Knight LLP, counsel for the Company, and (ii) any preliminary prospectusXxxxxxxx XxXxxxxxx, any Issuer Free Writing Prospectus or the Prospectusvice president, or any amendment or supplement thereto, contains any untrue statement general counsel and secretary of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Company, shall have furnished to the Representative their its written opinion, as counsel to the Company, addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to the Representative.
(d) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLPsubstantially in the form attached hereto as Exhibit A-1 and Exhibit A-2, counsel for the Selling Stockholders, shall have furnished to the Representative their written opinion, dated the First Delivery Date, in form and substance satisfactory to the Representativerespectively.
(e) Xxxxx Daythe Representative shall have received from each of (i)Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, shall have furnished to the Representative their written opinionand (ii) Xxxxx Xxxx & Xxxxxxx LLP, as Product Counsel , such opinion or opinions, dated such Delivery Date, in form and substance satisfactory with respect to the RepresentativeRegistration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Underwriters At the time of execution of this Agreement, the Representative shall have received, on each of the date hereof and each Delivery Date, received from KPMG LLP a letter dated the date hereof or such Delivery Date, as the case may beletter, in form and substance satisfactory to the Representative, from Ernst & Young LLP, containing statements addressed to the Underwriters and information dated the date hereof (i) confirming that they are independent public accountants within the meaning of the type Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily included in covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(g) With respect to the letter of KPMG LLP referred to in the preceding paragraph and delivered to the Representative concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Representative a letter (the “bring-down letter”) of KPMG LLP, addressed to the Underwriters and dated such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial statements information and certain financial information other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(h) At the time of execution of this Agreement, the Representative shall have received from Netherland, Xxxxxx & Associates, Inc. an initial letter (the “initial expert letter”), in form and substance satisfactory to the Representative, addressed to the Underwriters and dated the date hereof and a subsequent letter dated as of the Delivery Date, which such letter shall cover the period from any initial expert letter to the Delivery Date, stating the conclusions and findings of such firm with respect to the Company’s oil and gas reserves as is customary to underwriters in connection with registered public offerings.
(i) The Company and its consolidated subsidiaries contained shall have furnished to the Representative a certificate, dated the date hereof, of the Chief Financial Officer substantially in the Registration Statement, form set forth on Exhibit D hereto (the Disclosure Package and the Prospectus, provided that the letter shall use a “cut-off date” not earlier than the third day prior to Initial CFO Certificate”). At such Delivery Date, the Representative shall have received from the Chief Financial Officer a certificate (a “Bring-Down CFO Certificate”) (i) stating, as of the date of the Bring-Down CFO Certificate, the conclusions and findings of the Chief Financial Officer with respect to the matters covered by the Initial CFO Certificate and (ii) confirming in all material respects the conclusions and findings set forth in the Initial CFO Certificate.
(gj) The Company will, on each Delivery Date, deliver shall have furnished to the Underwriters Representative a certificate of its Chief Executive Officer and Chief Financial Officercertificate, dated such Delivery Date, to the effect of its Chief Financial Officer stating that:
(i) The representations representations, warranties and warranties agreements of the Company in Section 1 of this Agreement are true and correct, as if made correct on and as of the date thereof and provided that any reference therein to the First such Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; Date, and the Company has complied with all the its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and issued; and, to the knowledge of such officers, no proceedings or examination for that purpose have been instituted or are pending or threatened under the Securities Act;threatened; and
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose They have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and any amendments or supplements thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package and Package, and, in their opinion, (A) (1) the Registration Statement, as of its effective date, (2) the Prospectus, as of its date and any amendments on the applicable Delivery Date, or supplements thereto(3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not include contain any untrue statement of a material fact or and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements thereintherein (except in the case of the Registration Statement, in the light of the circumstances under which they were made, ) not misleading; and, misleading and (B) since the most recent effective date of the Registration Statement, there no event has occurred no event required to be that should have been set forth in an a supplement or amendment to the Registration Statement, the Prospectus or supplemented any Issuer Free Writing Prospectus which that has not been so set forth; and
(v) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vi) On the First Delivery Date, there shall have been furnished to you, as Representative of the several Underwriters, a certificate or certificates, dated the First Delivery Date and addressed to you, signed by each Selling Stockholder or such Selling Stockholder’s Attorneys-in-Fact to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery Date.;
(i) Neither the Company nor any None of the Subsidiaries Xxx Entities shall have sustained sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package and the Prospectus Package, any loss or interference with its businessbusiness from fire, otherwise than as set forth in the Disclosure Package and the Prospectus and explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since subsequent to the respective dates as of which such information is given in the Prospectus, Preliminary Prospectus there shall not have been any change in the capitalization capital stock or long-term debt of the Company Xxx Entities or any change, or any development or event involving a prospective change, on in or affecting the condition (financial or otherwise), businessresults of operations, stockholders’ equity, properties, management, business or prospects or results of operations of the Company and the Subsidiaries, Xxx Entities taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is is, in the judgment of the Representative Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in each of the Pricing Disclosure Package and the Prospectus.
(il) On or after Subsequent to the date hereof, execution and delivery of this Agreement there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the American Stock Exchange NYSE MKT, the NASDAQ Global Market or the NasdaqNASDAQ Global Select Market or in the over-the-counter market shall have been suspended or materially limited, (ii) a suspension or material limitation in trading in any securities of the Company’s securities Company on any exchange or in the Nasdaqover-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (iii) a general banking moratorium on commercial banking activities shall have been declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United Statesauthorities, (iv) the outbreak or United States shall have become engaged in hostilities that were not occurring as of the execution and delivery of this Agreement, there shall have been an escalation of in hostilities involving the United States that were occurring prior to the execution and delivery of this Agreement or the there shall have been a declaration by the United States of a national emergency or war by the United States or (v) the occurrence of any other calamity or crisis or any there shall have occurred such a material adverse change in financialgeneral economic, political or economic financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States or elsewhereshall be such), if the effect of any such event specified in clause (iv) or (v) as to make it, in the judgment of the Representative makes it Representative, impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in each of the Pricing Disclosure Package and the Prospectus.
(jm) The Representative Nasdaq shall have received from each person listed approved the Underlying Shares for listing, subject only to official notice of issuance.
(n) The Lock-Up Agreements between the Representative and the officers and directors of the Company set forth on Schedule B hereto an executed lock-up letter agreement substantially Exhibit C, delivered to the Representative on or before the date of this Agreement, shall be in full force and effect set forth in the form attached hereto as Schedule A.on such Delivery Date.
(ko) The Deposit Agreement shall have been executed and delivered by each party thereto.
(p) The Company shall have executed and delivered the Certificate of Designations.
(q) On the applicable Delivery Date, the representations and warranties of the Company shall be true, accurate and correct as of such Delivery Date.
(r) On or prior to such Delivery Date the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein containedrequest. All opinions, certificatesletters, letters evidence and documents certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of the Obligation of the Underwriters. The obligations of the several Underwriters hereunder to purchase and pay for the Firm Stock on the Closing Date and the Option Stock on the Second Closing Date shall be subject to the accuracy, when made and on each Delivery Date, of condition that the representations and warranties of made by the Company and the Selling Stockholders contained hereinherein are true and correct as of the date hereof and as of the respective Closing Dates, to the condition that the written statements of Company officers made pursuant to the provisions hereof are true and correct, and to the performance by each of the Company and the Selling Stockholders of its their respective obligations hereunder, hereunder in all material respects and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m.not later than 5:00 P.M., Eastern Cleveland time, on the date of this Agreement; , or at such later time as shall have been consented to by you, and prior to each Closing Date no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated instituted or threatened shall be pending, or to the knowledge of the Company or you, shall be contemplated by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative.
(b) The Underwriters You shall not have discovered and disclosed to advised the Company prior to or on such Delivery Date that (i) the Registration Statement, Statement or Prospectus or any amendment thereof or supplement thereto, thereto contains an untrue statement of a fact which, in the reasonable opinion of Xxxxxx, Halter & Xxxxxxxx LLP, counsel for the Underwriters, is material material, or omits to state a fact which, in the opinion of counsel for the Underwriterssuch counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, and (ii) any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Company, You shall have furnished to received as of each Closing Date (or prior thereto as indicated) the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.following:
(di) An opinion of Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Selling Stockholders, shall have furnished to the Representative their written opinion, dated the First Delivery Date, in form and substance satisfactory to the Representative.
(e) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.
(f) The Underwriters shall have received, on each of the date hereof and each Delivery Date, a letter dated the date hereof or such Delivery Date, as the case may be, in form and substance satisfactory to the Representative, from Ernst & Young LLP, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company and its consolidated subsidiaries contained in the Registration Statement, the Disclosure Package and the Prospectus, provided that the letter shall use a “cut-off date” not earlier than the third day prior to such Delivery Date.
(g) The Company will, on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer and Chief Financial Officer, dated such Delivery Daterespective Closing Dates, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct, as if made on and as of the date thereof and provided that any reference therein to the First Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and any amendments or supplements thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, did not and do not include any 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, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(v) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vi) On the First Delivery Date, there shall have been furnished to you, as Representative of the several Underwriters, a certificate or certificates, dated the First Delivery Date and addressed to you, signed by each Selling Stockholder or such Selling Stockholder’s Attorneys-in-Fact to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery Date.
(i) Neither the Company nor any of the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Disclosure Package and the Prospectus any loss or interference with its business, otherwise than as set forth in the Disclosure Package and the Prospectus and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capitalization of the Company or change, or any development or event involving a prospective change, on the condition (financial or otherwise), business, properties, business prospects or results of operations of the Company and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representative so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(i) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq, (ii) a suspension or material limitation in trading in the Company’s securities on the Nasdaq, (iii) a general moratorium on commercial banking activities declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(j) The Representative shall have received from each person listed on Schedule B hereto an executed lock-up letter agreement substantially to the effect set forth in the form attached hereto as Schedule A.
(k) The Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. All opinions, certificates, letters and documents mentioned above or elsewhere in this Agreement shall be deemed to be compliance with the provisions hereof only if they are in form and substance satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Nn Inc)
Conditions of the Obligation of the Underwriters. The obligations of the several Underwriters hereunder to purchase and pay for the Firm Stock on the Closing Date and the Option Stock on the Second Closing Date shall be subject to the accuracy, when made and on each Delivery Date, of condition that the representations and warranties made by the Company herein are true and correct as of the date hereof and as of the respective Closing Dates, to the condition that the written statements of Company officers made pursuant to the provisions hereof are true and the Selling Stockholders contained hereincorrect, and to the performance by each of the Company and the Selling Stockholders of its their obligations hereunder, hereunder and to each of the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 4(c) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m.not later than 5:00 P.M., Eastern Cleveland time, on the date of this Agreement; , or at such later time as shall have been consented to by you in writing, and prior to each Closing Date no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated instituted or threatened shall be pending, or to the knowledge of the Company or you, shall be contemplated by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative.
(b) The Underwriters You shall not have discovered and disclosed to advised the Company prior to or on such Delivery Date that (i) the Registration Statement, Statement or Prospectus or any amendment thereof or supplement thereto, thereto contains an untrue statement of a fact which, in the reasonable opinion of Powell, Goldstein, Xxxxxx & Xxxxxx LLP, counsel for the Underwriters, is material material, or omits to state a fact which, in the opinion of counsel for the Underwriterssuch counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, and (ii) any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP, counsel for the Company, You shall have furnished to received as of each Closing Date (or prior thereto as indicated) the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.following:
(di) Xxxxxx Xxxxxxx Xxxxxx An opinion of Bass, Xxxxx & Brand, LLP, counsel for the Selling Stockholders, shall have furnished to the Representative their written opinionXxxx PLC, dated the First Delivery Date, in form and substance satisfactory to the Representative.
(e) Xxxxx Day, counsel for the Underwriters, shall have furnished to the Representative their written opinion, dated such Delivery Date, in form and substance satisfactory to the Representative.
(f) The Underwriters shall have received, on each of the date hereof and each Delivery Date, a letter dated the date hereof or such Delivery Date, as the case may be, in form and substance satisfactory to the Representative, from Ernst & Young LLP, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company and its consolidated subsidiaries contained in the Registration Statement, the Disclosure Package and the Prospectus, provided that the letter shall use a “cut-off date” not earlier than the third day prior to such Delivery Date.
(g) The Company will, on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer and Chief Financial Officer, dated such Delivery Daterespective Closing Dates, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct, as if made on and as of the date thereof and provided that any reference therein to the First Delivery Date shall be deemed to refer to the applicable Delivery Date on which such certificate is delivered; 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 such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) No stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iv) When the Registration Statement became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and any amendments or supplements thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement, the Disclosure Package and the Prospectus, and any amendments or supplements thereto, did not and do not include any 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, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(v) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and Prospectus, except as set forth in the Disclosure Package and the Prospectus, there has not been any (a) transaction or event which has a Material Adverse Effect, (b) change in the capitalization of the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole, (c) any obligation, contingent or otherwise, directly or indirectly incurred by the Company or any Subsidiary that is material to the Company and the Subsidiaries taken as a whole or (d) any dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(vi) On the First Delivery Date, there shall have been furnished to you, as Representative of the several Underwriters, a certificate or certificates, dated the First Delivery Date and addressed to you, signed by each Selling Stockholder or such Selling Stockholder’s Attorneys-in-Fact to the effect that the representations and warranties of such Selling Stockholder contained in this Agreement are true and correct as if made on and as of the date thereof, and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on such Selling Stockholder’s part to be performed or satisfied at or prior to the First Delivery Date.
(i) Neither the Company nor any of the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Disclosure Package and the Prospectus any loss or interference with its business, otherwise than as set forth in the Disclosure Package and the Prospectus and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capitalization of the Company or change, or any development or event involving a prospective change, on the condition (financial or otherwise), business, properties, business prospects or results of operations of the Company and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representative so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(i) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq, (ii) a suspension or material limitation in trading in the Company’s securities on the Nasdaq, (iii) a general moratorium on commercial banking activities declared by United States federal or New York or Delaware state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(j) The Representative shall have received from each person listed on Schedule B hereto an executed lock-up letter agreement substantially to the effect set forth in the form attached hereto as Schedule A.
(k) The Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request for the purposes of enabling it to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. All opinions, certificates, letters and documents mentioned above or elsewhere in this Agreement shall be deemed to be compliance with the provisions hereof only if they are in form and substance satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Pinnacle Financial Partners Inc)
