Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions: (i) No stop order suspending the qualification of the Offering Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification of the Offering Statement or the qualification or exemption 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 threatened or contemplated by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Statement or the Final Offering Circular shall have been filed unless a copy thereof was first submitted to the Underwriters and the Underwriters did not object thereto in good faith, and the Underwriters shall have received certificates of the Company, dated as of each Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (ii) and (iii). (b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change. (c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding, in the reasonable judgment of the Underwriters, would reasonably be expected to have a Material Adverse Effect. (d) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such Closing Date shall have been duly performed, fulfilled or complied with in all material respects. (e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriters. (f) At the Initial Closing and at any Subsequent Closing, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters to the effect that each signer has carefully examined the Offering Statement, the Final Offering Circular and the Pricing Disclosure Materials, and that to each of such person’s knowledge: i. As of the date of each such certificate, (x) the Offering Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect. ii. Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality. iii. Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with. iv. To their knowledge, no stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission. v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change. (g) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters. (h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date. (i) The Shares have been approved for listing upon notice of issuance on the NASDAQ. (j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions. (k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby. (l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular. (m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 3 contracts
Samples: Underwriting Agreement (Soliton, Inc.), Underwriting Agreement (Soliton, Inc.), Underwriting Agreement (Soliton, Inc.)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the each Closing Date and Option Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(i) No stop order suspending the qualification of the Offering Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification of the Offering Statement or the qualification or exemption 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 threatened or contemplated by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Statement or the Final Offering Circular shall have been filed unless a copy thereof was first submitted to the Underwriters and the Underwriters did not object thereto in good faith, and the Underwriters shall have received certificates of the Company, dated as of each Closing Date and Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding, in the reasonable judgment of the Underwriters, would reasonably be expected to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date and Option Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such Closing Date and Option Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date and Option Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the each Closing Date and each Option Closing Date, substantially in the form reasonably satisfactory to the Underwriters.
(f) At the Initial Closing and at any Subsequent Closing, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters to the effect that each signer has carefully examined the Offering Statement, the Final Offering Circular and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
i. As of the date of each such certificate, (x) the Offering Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.
ii. Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
iii. Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no No stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.
(g) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and Option Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date and Option Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement a lock-up agreement, substantially in the form of Exhibit B B, hereto from each of the Company’s officers, directors, and 10beneficial owners of 5% or more of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date and Option Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQNasdaq.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby, except those objections that have been resolved to FINRA’s satisfaction.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT American or NASDAQNasdaq; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date and Option Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 2 contracts
Samples: Underwriting Agreement (LMP Automotive Holdings Inc.), Underwriting Agreement (LMP Automotive Holdings Inc.)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representative not later than 3:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representative and all filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b) of the Rules and Regulations, the Company has filed the Rule 462(b) Registration Statement by 10:00 p.m., Washington D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), ; (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption registration of the Shares under the securities or Blue Sky blue sky laws of any jurisdiction shall be in effect effect, and no proceeding for such purpose shall be pending before, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission), such jurisdiction; (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities authorities; and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters Representative did not object thereto in good faith, and the Underwriters shall have received certificates of the Company, dated as of each Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse Effect, and (ii) the Company shall not have sustained any material loss or interference with its business, assets, or properties from fire, explosion, flood, or other casualty, or from any labor dispute or any court or legislative or other governmental action, order, or decree, which is not set forth in the Registration Statement, including the Pricing Disclosure Materials documents incorporated be reference therein, and the Final Offering CircularProspectus.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers officers, directors, or directors Shareholders in their capacities as such, or any of its assets or properties, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, Governmental Body in which litigation or proceedingproceeding an unfavorable ruling, in the reasonable judgment of the Underwritersdecision, or finding would reasonably be expected to have a Material Adverse Effect.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each at the Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityand, with respect to the Option Shares, at the Option Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly fully performed, fulfilled fulfilled, or complied with in all material respectswith.
(ef) On The Representative shall have received an opinion, dated the Closing Date and Option Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLPKellxx Xxxx & Xarrxx XXX, Washington, D.C., special counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriters.
(f) At the Initial Closing and at any Subsequent Closing, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters to the effect that each signer has carefully examined the Offering Statement, the Final Offering Circular and the Pricing Disclosure Materials, and that to each of such person’s knowledgefollowing effect:
i. As of the date of each such certificate, (x) the Offering Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.
ii. Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
iii. Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.
(g) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Company is registered as a financial holding company under the BHCA.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus.
(iii) The Company is duly qualified as a foreign corporation to transact business in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus in the column entitled "Actual" under the caption "Capitalization" (except for subsequent issuances, if any, pursuant to the Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Prospectus or pursuant to the exercise of options referred to in the Prospectus); the Shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-accessible; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company granted by applicable law or the Company's Certificate of Incorporation.
(v) The Shares have been approved duly authorized for listing upon notice issuance and sale to the Underwriters pursuant to the Agreement and, when issued and delivered by the Company pursuant to the Agreement against payment of issuance on the NASDAQconsideration set forth in the Agreement, will be validly issued and fully paid and non-assessable; no holder of the Shares is or will be subject to personal liability for obligations of the Company solely by reason of being such a holder; the Shares conform to the provisions of the certificate of designation of the Company creating the Shares (the "Certificate of Designation") and the rights, preferences and other terms of the Shares are as set forth in the Certificate of Designation relating thereto, and all such provisions are valid under the laws of the Commonwealth of Puerto Rico.
(jvi) The Company shall have furnished or caused to be furnished the issuance of the Shares is not subject to the Underwriters on each Closing Date satisfactory evidence preemptive or other similar rights of any security holder of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictionsCompany.
(kvii) FINRA shall not have raised any objection with respect to the fairness or reasonableness Each of the plan Subsidiaries has been duly incorporated and is validly existing as a corporation under the laws of distributionits jurisdiction of incorporation, or other arrangements each of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.Subsidiaries is
Appears in 2 contracts
Samples: Underwriting Agreement (R&g Financial Corp), Underwriting Agreement (R&g Financial Corp)
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Directors of the Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been, and no development shall have occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or the Bank, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor the Bank shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or the Bank or any of its their respective officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of the Underwriters, would reasonably be expected to have a Material Adverse EffectCompany or the Bank.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, and satisfactory in form and substance to counsel for the Underwriters, from Powell, Goldstein, Xxxxxx and Xxxxxx, LLP, counsel to the Company, to the effect set forth in Exhibit C.
(g) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, A Professional Limited Liability Company, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives.
(h) On the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at any Subsequent Closingthe Closing Date and the Option Closing Date.
(i) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a Representatives an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither since the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereinEffective Date, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.;
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.respects;
(iii. ) Each of the covenants required herein to be performed by the Company on or prior to the date delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery date of such certificate has been duly, timely and fully complied with.; and
(iv. To their knowledge) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) there has not been, and no stop order suspending development has occurred which could reasonably be expected to result in, a material adverse change in the qualification general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Offering Statement Company or the Bank, whether or not arising from transactions in the ordinary course of any part thereof has been issued and no proceedings for that purpose have been instituted business, in each case other than as set forth in or are contemplated by the Commission.
v. Subsequent to Registration Statement and the date of Prospectus and (B) neither the most recent financial statements Company nor the Bank has sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Offering Registration Statement and in the Final Offering CircularProspectus, there has been no Material Adverse Changeand such other matters as the Representatives may reasonably request.
(gj) On or prior to the Closing Date, the Representatives shall have received the executed agreements referred to in Section 4(n).
(k) The Shares shall be qualified for sale in such states as the Representatives may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date.
(l) Prior to the Closing Date, the Shares shall be approved for quotation on the Nasdaq OTC Bulletin Board when issued.
(m) The National Association of Securities Dealers, Inc. shall have approved the underwriting terms and arrangements and such approval shall not have been withdrawn or limited.
(n) The Company shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus, as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentatives.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(jo) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory Representatives with evidence of the good standing its receipt of the Company preliminary conditional approval of the OCC and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in applications for each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated herebyRegulatory Approvals.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 2 contracts
Samples: Underwriting Agreement (Pinnacle Financial Partners Inc), Underwriting Agreement (Pinnacle Financial Partners Inc)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter the Underwriters hereunder are subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(ia) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental government authority (including, without limitation, the Commission), (iib) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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 threatened or contemplated by, any securities or other governmental government authority (including, without limitation, the Commissionany state or foreign securities administrator), (iiic) any request for additional information on the part of the staff of any securities or other governmental government authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities authority and (ivd) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, any Issuer Free Writing Prospectus or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was shall have been first submitted to the Underwriters and the Underwriters did shall not object have objected thereto in good faith, and the Underwriters shall have received certificates of the Company, dated as of each the Closing Date and signed by the President and Chief Executive Officer of the Company, Company and the Chief Financial Officer of the Company, to the effect of clauses (iia), (b) and (iiic) of this clause 7(i).
(bii) Since the respective dates as of which information is given in the Offering Registration Statement, the Pricing Disclosure Materials and the Final Offering CircularProspectus, (a) there shall not have been a Material Adverse Change, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement, the Pricing Disclosure Materials and the Final Prospectus and (b) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other government action, order or decree, which is not set forth in the Registration Statement, the Pricing Disclosure Materials and the Final Prospectus, if in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changeany such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares to Investors as contemplated hereby.
(ciii) Since the respective dates as of which information is given in the Offering Registration Statement, the Pricing Disclosure Materials and the Final Offering CircularProspectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federal, state or state, local or foreign court, commission, regulatory body, administrative agency or other governmental government body, domestic or foreign, which litigation or proceeding, in the reasonable judgment of the Underwriters, would could reasonably be expected to have a Material Adverse Effect.
(div) Each of the representations and warranties of the Company and its Subsidiaries contained herein shall be true and correct as of each at the Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality, as if made on such date, and all covenants and agreements herein contained to be performed by or on the part behalf of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(ev) On The Underwriters shall have received an opinion and 10b-5 statement, dated the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx of Mxxxxxxx & Fxxxxxxx LLP, Washington, D.C., as counsel for to the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form and substance reasonably satisfactory to the Underwriters.
(fvi) The Underwriters shall have received an opinion and 10b-5 statement, dated the Closing Date, of Rimon PC, as counsel to the Underwriters, in form and substance reasonably satisfactory to the Underwriters.
(vii) As of the Applicable Time and on the Closing Date, KPMG shall have furnished to the Underwriters, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Pricing Disclosure Materials and the Final Prospectus; provided that the letter to be delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such Closing Date.
(viii) At the Initial Closing and at any Subsequent Closing, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters to the effect that each signer has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
i. (a) (1) As of the date of each such certificate, (x) the Offering Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (2) no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.
ii. (b) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
iii. (c) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge(d) The Rule 462(b) Registration Statement (if any) satisfying the requirements of Rules 462(b)(1) and (3) was timely filed pursuant to Rule 462(b), no stop order suspending the qualification including payment of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commissionapplicable filing fee.
v. (e) Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering CircularProspectus, there has been no Material Adverse Change.
(gix) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any the Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus, as to the accuracy on such the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, hereunder or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(hx) On or prior to the date hereof, the Company The Underwriters shall have furnished received the lock up letters referred to the Underwriters an agreement in Section 4(o) hereof substantially in the form of Exhibit B hereto A from each director, officer and stockholder of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be Company named in full force and effect on the Closing DateSchedule 5 hereto.
(ixi) The Shares shall have been approved for listing quotation upon notice of issuance on the NASDAQNasdaq.
(jxii) The Company shall have furnished or caused to be furnished to the Underwriters on each the Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective its jurisdiction of organization and their its good standing as a foreign entities entity in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental government authorities of such jurisdictions.
(kxiii) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, distribution or other arrangements for compensation of the transactions, Underwriters in connection with the transactions contemplated hereby.
(lxiv) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQNasdaq; (b) a general moratorium on commercial banking activities declared by either Federal U.S. federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the initial public offering or the delivery of the Shares being delivered on any the Closing Date on the terms and in the manner contemplated in the Final Offering CircularProspectus.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 2 contracts
Samples: Underwriting Agreement (Sidoti & Company, Inc.), Underwriting Agreement (Sidoti & Company, Inc.)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to (1) the accuracy of the representations and warranties on the part of the Company as set forth in Section 3Sections 3 hereof, respectively, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(i) No stop order suspending the qualification of the Offering Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification of the Offering Statement or the qualification or exemption 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 threatened or contemplated by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Statement or the Final Offering Circular shall have been filed unless a copy thereof was first submitted to the Underwriters Underwriter and the Underwriters Underwriter did not object thereto in good faith, and the Underwriters Underwriter shall have received certificates of the Company, dated as of each Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters Underwriter there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding, in the reasonable judgment of the UnderwritersUnderwriter, would reasonably be expected to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters Underwriter shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C.of Venture Law Corporation, counsel for the Company, addressed to the UnderwritersUnderwriter, dated as of the Closing Date, substantially in the form satisfactory to the UnderwritersUnderwriter.
(f) Removed and Reserved.
(g) At the Initial Closing and at any Subsequent Closing, there shall be furnished to the Underwriters Underwriter a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Underwriter to the effect that each signer has carefully examined the Offering Statement, and the Final Offering Circular and the Pricing Disclosure MaterialsCircular, and that to each of such person’s 's knowledge:
i. (i) As of the date of each such certificate, (x) the Offering Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
(iii. ) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv. To their knowledge, no ) No stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. (v) Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.
(gh) The Company shall have furnished or caused to be furnished to the Underwriters Underwriter such certificates, in addition to those specifically mentioned herein, as the Underwriters Underwriter may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersUnderwriter.
(hi) On or prior to the date hereof, the Company shall have furnished to the Underwriters Underwriter an agreement substantially in the form of Exhibit B hereto from each of the Company’s 's officers, directors, and 10% of greater security holders of the Company’s 's Common Stock or securities convertible into or exercisable for shares of the Company’s 's Common StockStock as set forth in Schedule D hereto, and each such agreement shall be in full force and effect on the Closing Date.
Date and effective as follows: (i) The Shares have been approved for listing upon notice Xx. Xxxxxxx and any entity which he is an indirect or direct beneficial owner shall be subject to a 365 day (12 month) lock-up, wherein during the first 90 days (months 1-3) following the Closing Date there shall be a total and complete lock-up, during the second 90 days (months 4-6) Bomford shall be subject to a partial lock-up and permitted to sell or dispose of issuance on up to 1% of his aggregate holdings per month subject to a minimum sales price of $0.84 per share, and after the NASDAQ180th day (months 7-12) Bomford shall be subject to a partial lock-up and permitted to sell or dispose of up to 5% of his aggregate holdings per month subject to a minimum sales price of $0.84 per share;; and (ii) all of the other parties set forth in Schedule D hereto shall be subject to a 180 day (6th month) lock-up, wherein during the first 90 days (months 1-3) following the Closing Date there shall be a total and complete lock-up, and during the second 90 days (months 4-6) the lock-up parties shall be subject to a partial lock-up and permitted to sell up to 10% of their holdings per 30 day period subject to a minimum sale price of $0.84 per share.
(j) The Company shall have furnished or caused to be furnished to the Underwriters Underwriter on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters Underwriter may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT MKT, NASDAQ, OTCQB, or NASDAQCSE; (b) a general moratorium on commercial banking activities declared by either Federal or New York Canadian authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 2 contracts
Samples: Underwriting Agreement (True Leaf Medicine International Ltd.), Participating Dealer Agreement (True Leaf Medicine International Ltd.)
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rules 424 and 430A of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then Regulations shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, and (v) the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date Date, and the Option Closing Date, and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Directors of the Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses clauses(i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, there shall have been no litigation or other proceeding instituted against the Company or any of its subsidiaries or any of their respective officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in the reasonable judgment of the Underwriters, decision or finding would be reasonably be expected to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct as of each at the Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityand, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(e) On The Representatives shall have received opinions, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, and satisfactory in form and substance to counsel for the Underwriters, from the General Counsel or Deputy General Counsel of the Company, and XxXxxx Law Firm, P.A., counsel to the Company, in substantially the respective forms set forth in Exhibit B and Exhibit C.
(f) The Representatives shall have received opinions, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, from Xxxxxxxx Xxxxxxx LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be substantially in the form set forth in Exhibit D.
(g) Concurrently with the execution and delivery of this Agreement, or, if the Company elects to rely on Rule 430A of the Rules and Regulations, on the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, (1) confirming that they are independent accountants with respect to the Company as required by the Act and the Rules and Regulations and (2) with respect to the accounting, financial or statistical information (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) contained in the Registration Statement or incorporated by reference therein, and containing statements and information of the type ordinarily included in accountants' SAS 72 "comfort letters" to underwriters, with respect to the financial statements and certain financial information contained in or incorporated by reference into the Prospectus, including the pro forma financial information. At the Closing Date and, as to the Option Shares, the Option Closing Date, the Underwriters Accountants shall have received furnished to the opinion and 10b-5 negative assurances Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from Xxxxxx Xxxxxx LLPthe Accountants, Washington, D.C., counsel for that nothing has come to their attention during the Company, addressed period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the UnderwritersClosing Date and the Option Closing Date which would require any change in their letter dated the date hereof, or, if the Company elects to rely on Rule 430A of the Rules and Regulations, dated as the date of the Prospectus, if it were required to be dated and delivered at the Closing Date and the Option Closing Date, substantially in the form satisfactory to the Underwriters.
(fh) At Concurrently with the Initial Closing execution and delivery of this Agreement or, if the Company elects to rely on Rule 430A of the Rules and Regulations, on the date of the Prospectus, and at any Subsequent Closingthe Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a Representatives an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(1) Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus (including any documents filed under the Exchange Act and that deemed to each of such person’s knowledge:
i. As be incorporated by reference into the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectrespect and there has been no document required to be filed under the Exchange Act and the Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the Prospectus that has not been so filed.
ii. (2) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityrespects.
iii. (3) Each of the covenants required herein to be performed by the Company on or prior to the date delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge(i) Subject to the limitations on required action of the Company set forth in Section 4(f), no the Shares shall be qualified for sale in such states as the Representatives may reasonably request, each such qualification shall be in effect and not subject to any stop order suspending or other proceeding on the qualification of Closing Date and the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse ChangeOption Closing Date.
(gj) Prior to the Closing Date, the Shares shall have been duly authorized for listing by the New York Stock Exchange upon official notice of issuance.
(k) The Company shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentatives.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 2 contracts
Samples: Underwriting Agreement (Scana Corp), Underwriting Agreement (Scana Corp)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are the several Underwriters to purchase and pay for the Offered Securities will be subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(i) No stop order suspending the qualification of the Offering Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification of the Offering Statement or the qualification or exemption 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 threatened or contemplated by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Statement or the Final Offering Circular shall have been filed unless a copy thereof was first submitted to the Underwriters and the Underwriters did not object thereto in good faith, and the Underwriters shall have received certificates of the Company, dated as of each Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the Companyherein, to the effect of clauses (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment accuracy of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as statements of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding, in the reasonable judgment of the Underwriters, would reasonably be expected to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed pursuant to the Underwritersprovisions hereof, dated as of the Closing Date, substantially in the form satisfactory to the Underwriters.
(f) At the Initial Closing and at any Subsequent Closing, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters to the effect that each signer has carefully examined the Offering Statement, the Final Offering Circular and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
i. As of the date of each such certificate, (x) the Offering Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.
ii. Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
iii. Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.
(g) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as hereunder and to the fulfillment following additional conditions precedent:
(a) The Prospectus as amended or supplemented in relation to the applicable Offered Securities shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing (without reliance on Rule 424(b)(8) by the Rules and Regulations and in accordance with Section 5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date hereof; no stop order suspending the effectiveness of the conditions concurrent Registration Statement or any part thereof shall have been issued and precedent no proceeding for that purpose shall have been initiated or to the obligations hereunder knowledge of the UnderwritersCompany threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with.
(hi) On or prior to the date hereof, the Company PricewaterhouseCoopers LLP shall have furnished to the Underwriters a letter, dated as of the date hereof, in form and substance satisfactory to the Underwriters, confirming that as of May 26, 2006 and during the period covered by the financial statements on which it reported, it was an agreement substantially independent registered public accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act, the Exchange Act and the applicable published Rules and Regulations and stating that as of the Applicable Time (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Preliminary Prospectus as of a particular time not more than five business days prior to the Applicable Time) conclusions and findings of such firm, to the effect that:
(A) in their opinion the financial statements examined by them and incorporated by reference in the Preliminary Prospectus comply as to form in all material respects with the applicable accounting requirements of Exhibit B hereto the Securities Act, the Exchange Act and the related published Rules and Regulations; and
(B) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Preliminary Prospectus (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s officersaccounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, directorsa reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall other financial information to be in full force and effect on agreement with such results, except as otherwise specified in such letter.
(ii) The Underwriters shall have received a letter, dated the Closing Date, of PricewaterhouseCoopers LLP which meets the requirements of subsection (b)(i) of this Section, except that (A) the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date for the purposes of this subsection, and (B) references to the Preliminary Prospectus will be replaced with references to the Prospectus.
(i) The Shares have been approved for listing upon notice of issuance on On the NASDAQ.
(j) The Company date hereof, Deloitte & Touche LLP shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence a letter, dated as of the good standing date hereof, in form and substance satisfactory to the Underwriters, confirming that they are an independent registered public accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act, the Exchange Act and the applicable published Rules and Regulations and stating that as of the Applicable Time (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Preliminary Prospectus as of a particular time not more than five business days prior to the Applicable Time) conclusions and findings of such firm, to the effect that:
(A) in their opinion the financial statements examined by them and incorporated by reference in the Preliminary Prospectus comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Exchange Act and the related published Rules and Regulations;
(B) on the basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that:
(1) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than one business day prior to the date of this Agreement, there was any change in the capital stock or any increase in short-term indebtedness or long-term debt of the Company and its consolidated subsidiaries or, at the Subsidiaries date of the latest available balance sheet read by such accountants, there was any decrease in their respective jurisdiction total shareholders’ equity or total consolidated net current assets, as compared with amounts shown on the latest balance sheet incorporated by reference in the Preliminary Prospectus; or
(2) for the period from the closing date of organization the latest statement of income incorporated by reference in the Preliminary Prospectus to the closing date of the latest statement of income read by such accountants, there were any decreases, as compared with the corresponding period of the previous year, in consolidated revenue or net income (excluding decreases due to derivatives accounted for under Statement of Financial Accounting Standards No. 133); and
(C) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and their good standing as foreign entities other financial information contained in such other jurisdictions as the Underwriters may reasonably request, Preliminary Prospectus (in each case in writing or any standard form of telecommunication to the extent that such dollar amounts, percentages and other financial information are derived from the appropriate governmental authorities general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such jurisdictionsgeneral accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter.
(kii) FINRA The Underwriters shall have received a letter, dated the Closing Date, of Deloitte & Touche LLP which meets the requirements of subsection (c)(i) of this Section, except that (A) the specified date referred to in such subsection will be a date not have raised any objection with respect more than one day prior to the fairness or reasonableness Closing Date for the purposes of this subsection, and (B) references to the plan of distribution, or other arrangements of Preliminary Prospectus will be replaced with references to the transactions, contemplated herebyProspectus.
(ld) On or after Subsequent to the Applicable Time Time, there shall not have occurred been (i) any change, or any development or event involving a prospective change, in the financial condition, business, properties or results of operations of the following: Company and its subsidiaries taken as a whole, which, in the judgment of the Underwriters, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (aii) any downgrading in the rating of any debt securities or preferred stock of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities or preferred stock of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any material suspension or material limitation in of trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQany setting of minimum prices for trading on such exchange; (biv) a general any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (v) any banking moratorium on commercial banking activities declared by either U.S. Federal or New York authorities or a material authorities; (vi) any major disruption in commercial banking or of settlements of securities settlement or clearance services in the United States; or (cvii) the any attack on, or outbreak or escalation of hostilities involving or act of terrorism involving, the United States States, any declaration of war by Congress or the declaration by the United States of a national emergency or war or (d) the occurrence of any other substantial national or international calamity or crisis or any change in financialemergency if, political or economic conditions in the United States or elsewherejudgment of the Underwriters, if the effect of any such event specified in clause (c) attack, outbreak, escalation, act, declaration, calamity or (d) in the judgment of the Representative emergency makes it impracticable impractical or inadvisable to proceed with completion of the offering or sale of and payment for the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering CircularOffered Securities.
(me) At The Underwriters shall have received an opinion, dated the Closing Date Date, of Xxxx X. Xxxxxx, General Counsel of the Company, substantially in the form of Exhibit A hereto.
(f) The Underwriters shall have received an opinion, dated the Closing Date, of Xxxxxxx Coie LLP, special counsel to the Company, in substantially the form of Exhibit B hereto.
(g) The Underwriters shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, in form and at any Subsequent Closingsubstance satisfactory to the Underwriters, and the Accountants Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, Xxxxxx & Xxxxxxx LLP may rely as to the incorporation of the Company and all other matters governed by Oregon law upon the opinion of Xxxx X. Xxxxxx referred to above.
(h) The Underwriters shall have received a lettercertificate, dated the Closing Date, of the President or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that: (i) the representations and warranties of the Company in this Agreement are true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect; (ii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (iii) that, subsequent to the date of the most recent financial statements in, or incorporated by reference in, the Preliminary Prospectus, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the financial condition, business or results of operations of the Company and its delivery subsidiaries taken as a whole except as set forth in the Disclosure Package and the Prospectus or as described in such certificate. The Company will (the “Comfort Letter”), addressed to i) furnish the Underwriters with such conformed copies of such opinions, certificates, letters and in form and substance reasonably satisfactory to documents as the Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” reasonably request. The Underwriters may waive compliance with any conditions to underwriters with respect to the financial statements and certain financial information contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circulartheir obligations hereunder.
Appears in 2 contracts
Samples: Underwriting Agreement (Pacificorp /Or/), Underwriting Agreement (Pacificorp /Or/)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters did Representative does not object thereto in good faith, and (v) the Underwriters Representative shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the applicable Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentative, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option Shares, at the applicable Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representative shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters from Xxxxxx Xxxxxxxx & Markiles, LLP, counsel to the Company.
(g) The Representative shall have received an opinion, dated the Closing Date or the applicable Option Closing Date, as the case may be, from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representative.
(h) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, addressed to the Representative and in form and substance satisfactory to the Representative, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Initial Closing Date and, as to the Option Shares, the applicable Option Closing Date, the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at any Subsequent Closingthe Closing Date or the applicable Option Closing Date, as the case may be.
(i) At the Closing Date and, as to the Option Shares, the applicable Option Closing Date, there shall be furnished to the Underwriters Representative a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representative, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the applicable Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialitycorrect.
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gj) On or prior to the Closing Date, the Representative shall have received the executed agreements referred to in Section 4(n).
(k) The Shares shall be qualified for sale in such jurisdictions as the Representative may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the applicable Option Closing Date.
(l) Prior to the Closing Date, the Shares shall have been duly authorized for listing on the NGM upon official notice of issuance.
(m) The Company shall have furnished or caused to be furnished to the Underwriters Representative such certificates, in addition to those specifically mentioned herein, as the Underwriters Representative may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the applicable Option Closing Date of any statement in the Offering Registration Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Prospectus or the Final Offering CircularGeneral Disclosure Package, as to the accuracy on such at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentative.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 2 contracts
Samples: Underwriting Agreement (Vitesse Semiconductor Corp), Underwriting Agreement (Vitesse Semiconductor Corp)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter the Underwriters hereunder are subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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 threatened or contemplated by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, any Permitted Free Writing Prospectus or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Grandview and the Underwriters Grandview did not object thereto in good faith, and the Underwriters Grandview shall have received certificates of the Company, dated as of each the Initial Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus: (i) there shall not have been a Material Adverse Change, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the reasonable judgment of Grandview any such development makes it impracticable or inadvisable to consummate the Underwriters there shall not have occurred a Material Adverse Changesale and delivery of the Shares to Investors as contemplated hereby.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding, in the reasonable judgment of the UnderwritersGrandview, would reasonably be expected to could have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityDate, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the The Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwritersan opinion, dated as of the Initial Closing Date, substantially in the form satisfactory of Xxxxxx + Xxxxxx LLP with respect to the Underwritersmatters set forth in Exhibit F hereto.
(f) Satisfactory completion by Grandview of its due diligence investigation and analysis of: (i) the Company’s arrangements with its officers, directors, employees, affiliates, customers and suppliers, (ii) the audited historical financial statements of the Company for the fiscal years ended June 30, 2007, 2008 and 2009 and (iii) the Company’s projected financial results for the fiscal quarters ending March 31, 2010 through 2011.
(g) The execution of this Underwriting Agreement.
(h) The Company meeting the criteria necessary for inclusion of the Common Stock on the NASDAQ Capital Market and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing.
(i) Neither the Company not any of its affiliates has, either prior to the initial filing or the effect date of the Registration Statement, made any offer or sale of any securities which are required to be “integrated” pursuant to the Securities Act or the regulations thereunder with the offer and sale of the Shares pursuant to the Registration Statement.
(j) The Company’s registration of the Common Stock under the provisions of Section 12(b) or (g), as applicable, of the Securities Exchange Act of 1934 on or prior to the effective date of the offering.
(k) The Company obtaining and maintaining a qualified Chief Financial Officer.
(l) The Company retaining a firm of independent certificate public accountants acceptable to Grandview.
(m) The Company retaining a financial printer reasonably acceptable to Grandview.
(n) The Company retaining a transfer agent for the Company’s Common Stock reasonably acceptable to Grandview.
(o) The Company engaging a financial public relations firm reasonably acceptable to Grandview.
(p) The Company registering with the Corporation Records Services published by Standard & Poor’s Corporation.
(q) Prior to the Initial Closing Date, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance satisfactory to Grandview, confirming that: (i) they are independent public accountants with respect to the Company within the meaning of the Securities Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than five days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by Grandview, or any increases in any items specified by Grandview, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in Clause (A), there were any decreases in revenues or the total or per share amounts of net income or other items specified by Grandview, or any increases in any items specified by Grandview, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by Grandview, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by Grandview, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(r) At the Initial Closing and at any Subsequent ClosingDate, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Grandview to the effect that each signer has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure MaterialsProspectus, and that to each of such person’s knowledge:
i. (i) (A) As of the date of each such certificate, (x) the Offering Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (y) the Prospectus does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii. Each of ) All the representations and warranties of the Company contained in this Agreement werethat are qualified as to materiality or Material Adverse Effect shall have been on the date hereof and shall be as of the Initial Closing Date, when originally made, as if made on and are, at as of the time such certificate is deliveredInitial Closing Date, true and correct complete in all respects for those respects, and all the representations and warranties of the Company contained in this Agreement that are not qualified by as to materiality or Material Adverse Effect shall have been true and complete in all material respects for those representations on the date hereof and warranties shall be true and complete in all material respects as of the Initial Closing Date, provided, however, that are not qualified by materialityany representation or warranty of the Company in this Agreement made only as of some date other than the date hereof shall have been true and complete only as of such other date.
(iii. ) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv. To their knowledge, no ) No stop order or other order suspending the qualification effectiveness of the Offering Statement Registration Statement, or any part thereof, or the qualification or registration of the Shares under the securities or Blue Sky laws of any part thereof jurisdiction, has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. (v) Any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities.
(vi) Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering CircularProspectus, there has been no Material Adverse Change.
(gs) The Shares shall be qualified for sale in such states as Grandview may reasonably request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on any Closing Date with respect to the sale of the Shares in such state or states, as provided for herein.
(t) The Company shall have furnished or caused to be furnished to the Underwriters such a customary certificate of the Company’s Secretary, as well as certificates, in addition to those specifically mentioned herein, as the Underwriters Grandview may have reasonably requested as to the accuracy and completeness on any at the Initial Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus, as to the accuracy on such at the Initial Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(hu) On or prior to the date hereof, the Company Grandview shall have furnished received the agreements referred to the Underwriters an agreement in Section 3(mm) and (nn) hereof substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, Exhibits D and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing DateE hereto.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 2 contracts
Samples: Underwriting Agreement (China Green, Inc.), Underwriting Agreement (China Green, Inc.)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter the Underwriters hereunder are subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(ia) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (iib) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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 threatened or contemplated by, any securities or other governmental authority (including, without limitation, the Commission), (iiic) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (ivd) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, any Issuer Free Writing Prospectus or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters and the Underwriters did not object thereto in good faith, and the Underwriters shall have received certificates of the Company, dated as of each the Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (iia), (b) and (iiic).
(bii) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (a) there shall not have been a Material Adverse Change, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Final Prospectus and (b) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Final Prospectus, if in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changeany such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares to Investors as contemplated hereby.
(ciii) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding, in the reasonable judgment of the Underwriters, would reasonably be expected to have a Material Adverse Effect.
(div) Each of the representations and warranties of the Company and the Selling Stockholders contained herein shall be true and correct as of each at the Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and the Selling Stockholders and all conditions herein contained to be fulfilled or complied with by the Company and the Selling Stockholders at or prior to such the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(ev) On the Closing Date, the The Underwriters shall have received an opinion, dated the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx Closing Date (or such other date as may be set forth in a representation or warranty), of Xxxxxxx Xxxxx LLP, Washington, D.C., as counsel for to the Company, addressed in form and substance reasonably satisfactory to the Underwriters, with respect to the matters set forth in Exhibit B hereto.
(vi) The Underwriters shall have received an opinion, dated as of the Closing DateDate (or such other date as may be set forth in a representation or warranty), substantially of Virtual Law Partners LLP, as counsel to the Underwriters, in the form and substance reasonably satisfactory to the Underwriters.
(fvii) At the Initial Closing Date, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and at in form and substance satisfactory to the Underwriters, confirming that (a) they are independent public accountants with respect to the Company within the meaning of the Act and the Rules and Regulations; (b) in their opinion, the financial statements and any Subsequent Closingsupplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations; (c) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Final Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (1) as of a specified date not more than five days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by the Underwriters, or any increases in any items specified by the Underwriters, in each case as compared with amounts shown in the latest balance sheet included in the Final Prospectus, except in each case for changes, increases or decreases which the Final Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (2) for the period from the date of the latest financial statements included in the Final Prospectus to the specified date referred to in Clause (1) above, there were any decreases in revenues or the total or per share amounts of net income or other items specified by the Underwriters, or any increases in any items specified by the Underwriters, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Underwriters, except in each case for decreases or increases which the Final Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; (d) in addition to the examination referred to in their reports included in the Final Prospectus and the procedures referred to in clause (c) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Underwriters, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Final Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement; and (e) on the basis of a reading of the unaudited pro forma financial statements included in the Registration Statement and the Final Prospectus (the “pro forma financial statements”), carrying out certain specified procedures, inquiries of certain officials of the Company who have responsibility for financial and accounting matters, and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the pro forma financial statements, nothing came to their attention which caused them to believe that the pro forma financial statements do not comply as to form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such statements.
(viii) At the Closing Date, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters to the effect that each signer has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
i. (a) (1) As of the date of each such certificate, (x) the Offering Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (2) no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.
ii. (b) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
iii. (c) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no (d) No stop order suspending the qualification effectiveness of the Offering Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission; the Rule 462(b) Registration Statement (if any) satisfying the requirements of Rules 462(b)(1) and (3) was timely filed pursuant to Rule 462(b), including payment of the applicable filing fee.
v. (e) Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering CircularProspectus, there has been no Material Adverse Change.
(gix) At the Closing Date, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the Selling Stockholders, in form and substance satisfactory to the Underwriters to the effect that (a) each of the representations and warranties of such Selling Stockholder contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality and (b) each of the covenants required herein to be performed by such Selling Stockholder on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by such Selling Stockholder on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(x) The Shares shall be qualified for sale in such states as the Underwriters may reasonably request (subject to Section 4(xiii)), and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date.
(xi) The Company and the Selling Stockholders shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any at the Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus, as to the accuracy on such at the Closing Date of the representations and warranties of the Company or the Selling Stockholders as to the performance by the Company or the Selling Stockholders, as the case may be, of its their obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(hxii) On or prior to the date hereof, the Company The Underwriters shall have furnished received the letters referred to the Underwriters an agreement in Section 3(i)(pp) hereof substantially in the form of Exhibit B hereto A from each director, officer and stockholder of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be Company named in full force and effect on the Closing DateSchedule 3 hereto.
(ixiii) The Shares have been approved for listing quotation upon notice of issuance on the NASDAQNYSE Amex.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(lxiv) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT Amex or NASDAQthe Nasdaq Stock Market LLC; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative Representatives makes it impracticable or inadvisable to proceed with the initial public offering or the delivery of the Shares being delivered on any at the Closing Date on the terms and in the manner contemplated in the Final Offering CircularProspectus.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 2 contracts
Samples: Underwriting Agreement (Whiteglove Health Inc), Underwriting Agreement (Whiteglove House Call Health Inc)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to (1) the accuracy of the representations and warranties on the part of the Company and each of the Selling Stockholders set forth in Section 3Sections 3 and 4 hereof, respectively, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company and each of the Selling Stockholders of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(i) No stop order suspending the qualification of the Offering Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Statement or the qualification or exemption 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 threatened or contemplated by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Statement or the Final Offering Circular shall have been filed unless a copy thereof was first submitted to the Underwriters Underwriter and the Underwriters Underwriter did not object thereto in good faith, and the Underwriters Underwriter shall have received certificates of the Company, dated as of each Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters Underwriter there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding, in the reasonable judgment of the UnderwritersUnderwriter, would reasonably be expected to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company and each Selling Stockholder contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and each Selling Stockholder and all conditions herein contained to be fulfilled or complied with by the Company and each Selling Stockholder at or prior to such Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters Underwriter shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C.of DLA Piper LLP (US), counsel for the Company, addressed to the UnderwritersUnderwriter, dated as of the Closing Date, substantially in the form satisfactory to the UnderwritersUnderwriter.
(f) On the Closing Date, the Underwriter shall have received the opinion of [ ], counsel for the Selling Stockholders, addressed to the Underwriter, dated as of the Closing Date, substantially in the form satisfactory to the Underwriter.
(g) At the Initial Closing and at any Subsequent Closing, there shall be furnished to the Underwriters Underwriter a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Underwriter to the effect that each signer has carefully examined the Offering Statement, the Final Offering Circular and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
i. (i) As of the date of each such certificate, (x) the Offering Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (2) no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
(iii. ) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv. To their knowledge, no ) No stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. (v) Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.
(gh) The Company and the Selling Stockholders shall have furnished or caused to be furnished to the Underwriters Underwriter such certificates, in addition to those specifically mentioned herein, as the Underwriters Underwriter may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company and the Selling Stockholders as to the performance by the Company and the Selling Stockholders of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersUnderwriter.
(hi) On or prior to the date hereof, the Company and the Selling Stockholders shall each have furnished to the Underwriters Underwriter an agreement substantially in the form of Exhibit B hereto from (i) each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and (ii) each of the Selling Stockholders, as applicable, in each case as named in Schedule E hereto, and each such agreement shall be in full force and effect on the Closing Date.
(ij) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(jk) The Company shall have furnished or caused to be furnished to the Underwriters Underwriter on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters Underwriter may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(kl) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(lm) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 2 contracts
Samples: Underwriting Agreement, Underwriting Agreement (Adomani, Inc.)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to (1) the accuracy of the representations and warranties on the part of the Company as set forth in Section 3Sections 3 hereof, respectively, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(i) No stop order suspending the qualification of the Offering Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification of the Offering Statement or the qualification or exemption 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 threatened or contemplated by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Statement or the Final Offering Circular shall have been filed unless a copy thereof was first submitted to the Underwriters Underwriter and the Underwriters Underwriter did not object thereto in good faith, and the Underwriters Underwriter shall have received certificates of the Company, dated as of each Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters Underwriter there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding, in the reasonable judgment of the UnderwritersUnderwriter, would reasonably be expected to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and and
(e) warranties that are not qualified by materiality, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(ef) On the Closing Date, the Underwriters Underwriter shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C.of Venture Law Corporation, counsel for the Company, addressed to the UnderwritersUnderwriter, dated as of the Closing Date, substantially in the form satisfactory to the UnderwritersUnderwriter.
(f) At the Initial Closing and at any Subsequent Closing, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters to the effect that each signer has carefully examined the Offering Statement, the Final Offering Circular and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
i. As of the date of each such certificate, (x) the Offering Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.
ii. Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
iii. Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.
(g) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 2 contracts
Samples: Underwriting Agreement (True Leaf Medicine International Ltd.), Participating Dealer Agreement (True Leaf Medicine International Ltd.)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representative not later than 3:00 p.m., New York City time, on the date of this 14 14 Agreement or at such later date and time as shall be consented to in writing by the Representative and all filings required by Rule 424 of the representations Rules and warranties Regulations and Rule 430A shall have been made. If the Company has elected to rely upon Rule 462(b) of the Rules and Regulations, the Company has filed the Rule 462(b) Registration Statement by 10:00 p.m., Washington D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption registration of the Shares under the securities or Blue Sky blue sky laws of any jurisdiction shall be in effect effect, and no proceeding for such purpose shall be pending before, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities authorities, and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters Representative did not object thereto in good faith, and the Underwriters Representative shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer of the Company, Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of the foregoing clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been a material adverse change in the general affairs, business, properties, management, financial condition or results of operations of the Company whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any material loss or interference with its business, assets or properties from fire, explosion, flood or other casualty, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers officers, directors or directors shareholders in their capacities as such, or any of its assets or properties, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, Governmental Body in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, financial condition, net worth or results of operations of the Underwriters, would reasonably be expected to have a Material Adverse EffectCompany.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each at the Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityand, with respect to the Option Shares, at the Option Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied 15 15 with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly fully performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) At the Initial Closing and at any Subsequent Closing, there The Representative shall be furnished to the Underwriters a certificatehave received an opinion, dated the date Closing Date and the Option Closing Date, from Fiddler Gonzxxxx & Xodrxxxxx, XXP, Puerto Rico counsel for the Company to the following effect:
(i) The Company has been duly organized and validly existing as a corporation under the laws of the Commonwealth of Puerto Rico and is in good standing with the Commonwealth of Puerto Rico. Each of First Federal Finance Corporation ("First Federal"), First Leasing & Rental Corporation ("First Leasing") and FirstBank, each a Subsidiary, is a corporation duly organized, validly existing and in good standing under the laws of its delivery, signed by each respective jurisdiction of the President and the Chief Financial Officer incorporation. Each of the Company, First Federal, First Leasing and FirstBank is duly qualified and in their capacities good standing as officers a foreign corporation in each jurisdiction in which the character or location of its properties (owned, leased or licensed) or the Companynature or conduct of its business or use of its property and assets makes such qualification necessary, in form and substance satisfactory except where the failure to the Underwriters to the effect that each signer has carefully examined the Offering Statement, the Final Offering Circular and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
i. As of the date of each such certificate, (x) the Offering Statement does so qualify would not contain any untrue statement of have a material fact adverse effect on the financial condition, or omit to state a material fact required to be stated therein the earnings or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.
ii. Each of the representations and warranties business affairs of the Company contained and its Subsidiaries taken as a whole;
(ii) The Company has an authorized capitalization as set forth in this Agreement werethe Prospectus; the Company has duly authorized the issuance and sale of the Shares to be sold by it hereunder; such Shares, when originally madeissued by the Company and paid for in accordance with the terms hereof, will be validly issued, fully paid and are, at the time such certificate is delivered, true nonassessable and correct in all respects for those representations and warranties qualified by materiality and will conform in all material respects to the description thereof contained in the Prospectus and will not be subject to any preemptive, subscription or other similar rights; the Shares have been duly authorized for those representations listing on the NYSE, subject only to official notice of issuance; and warranties that are not qualified by materiality.
iii. Each no holders of securities of the covenants Company are entitled to have such securities registered under the Registration Statement, except for holders who have waived any such registration rights;
(iii) The Registration Statement, including any Rule 462(b) Registration Statement, is effective under the Act; any required herein filing of the Prospectus pursuant to be performed Rule 424(b) has been made in the manner and within the time period required by the Company on or prior Rule 424(b); and to the date best knowledge of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledgecounsel, no stop order suspending the qualification effectiveness of the Offering Registration Statement or any amendment thereto and no order directed at any document incorporated by reference in the Registration Statement or of the Rule 462(b) Registration Statement or any part thereof amendment thereto has been issued and issued, and, no proceedings for that purpose have been instituted or are pending or are threatened or contemplated by under the Commission.Act; 16 16
v. Subsequent to the date of the most recent financial statements in the Offering (iv) The Registration Statement and in the Final Offering CircularProspectus as of its date, there has been no Material Adverse Change.
(g) The Company shall have furnished or caused appeared on their face to be furnished to the Underwriters such certificatesappropriately responsive, in addition to those specifically mentioned hereinall material respects (other than the documents incorporated therein by reference and not including the financial statements, as the Underwriters may have reasonably requested as to the accuracy schedules and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circularother financial data contained therein, as to which such counsel need not express any opinion), with the accuracy on such Closing Date requirements of the representations Act and warranties the related rules and regulations thereunder;
(v) The descriptions contained and summarized in the Registration Statement, or incorporated therein by reference, and the Prospectus are accurate and fairly represent in all material respects the information required to be shown in the Registration Statement and Prospectus by the Act and the Rules and Regulations; and the statements set forth under the headings "Risk Factors - Banking Regulations May Restrict First BanCorp's Ability to Pay Dividends," "Recent Developments," "Description of Capital Stock," and "Taxation" in the Prospectus, insofar as such statements constitute a summary of the Company as legal matters, documents or proceedings referred to the performance by the Company of its obligations hereundertherein, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters provide an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities accurate summary of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distributionlegal matters, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms documents and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.proceedings;
Appears in 2 contracts
Samples: Underwriting Agreement (First Bancorp /Pr/), Underwriting Agreement (First Bancorp /Pr/)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters did Representative does not object thereto in good faithfaith provided, that in the case of any report on Form 8-K furnished to the Representative for review hereunder, the Representatives shall use commercially reasonable efforts to complete their review within one business day after receiving the report, and its failure to complete the Underwriters review by such time shall not delay the Company’s timely filing of the Form 8-K, and (v) the Representative shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the applicable Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentative, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option Shares, at the applicable Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectsrespect.
(ef) On The Representative shall have received an opinion and a negative assurance letter, each dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLPXxxxxxx Xxxxxxxx & Xxxxxx, Washington, D.C.Professional Corporation, counsel for to the Company, addressed in form and substance previously agreed to the Underwritersbetween Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, dated as of the Closing DateProfessional Corporation and Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, substantially in the form satisfactory counsel to the Underwriters.
(fg) The Representative shall have received an opinion and a negative assurance letter, each dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, from Beijing AnLi Law Firm, counsel to Beijing Tongmei Xtal Technology, the Company’s wholly owned subsidiary, in form and substance previously agreed to between Beijing AnLi Law Firm and Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel to the Underwriters.
(h) The Representative shall have received an opinion and negative assurance letter, dated the Closing Date or the applicable Option Closing Date, as the case may be, from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion and negative assurance letter shall be in form and substance satisfactory to the Representative.
(i) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, addressed to the Representative and in form and substance satisfactory to the Representative, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Closing Date and, as to the Option Shares, the applicable Option Closing Date, the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date or the applicable Option Closing Date, as the case may be.
(j) At the Initial Closing and at any Subsequent ClosingDate and, as to the Option Shares, the applicable Option Closing Date, there shall be furnished to the Underwriters Representative a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representative, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the applicable Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gk) On or prior to the Closing Date, the Representative shall have received the executed agreements referred to in Section 4(l).
(l) The Shares shall be qualified for sale in such jurisdictions as the Representative may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the applicable Option Closing Date.
(m) Prior to the Closing Date, the Company shall have filed a notice of listing of additional shares with respect to the Shares with the NGSM and the NGSM shall not have objected to such listing.
(n) The Company shall have furnished or caused to be furnished to the Underwriters Representative such certificates, in addition to those specifically mentioned herein, as the Underwriters Representative may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the applicable Option Closing Date of any statement in the Offering Registration Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Prospectus or the Final Offering CircularGeneral Disclosure Package, as to the accuracy on such at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentative.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (Axt Inc)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters did Representative do not object thereto in good faith, and (v) the Underwriters Representative shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the applicable Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, or any of its or its officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentative, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option Shares, at the applicable Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(ef) On The Representative shall have received an opinion and negative assurance letter, dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx & Xxxxxxx LLP, Washington, D.C., counsel for to the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form attached hereto as Exhibit A.
(g) The Representative shall have received an opinion and negative assurance letter, dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Representative, of Xxxx & Xxxxx, LLC, special counsel for the Company with respect to patents and proprietary rights, addressed to the Representative.
(h) The Representative shall have received an opinion and negative assurance letter, dated the Closing Date or the applicable Option Closing Date, as the case may be, from Xxxxxxxxxx Xxxxxxx LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion and negative assurance letter shall be satisfactory in all respects to the Representative.
(i) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, addressed to the Representative and in form and substance satisfactory to the UnderwritersRepresentative, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Closing Date and, as to the Option Shares, the applicable Option Closing Date, the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date or the applicable Option Closing Date, as the case may be.
(fj) At the Initial Closing and at any Subsequent ClosingDate and, as to the Option Shares, the applicable Option Closing Date, there shall be furnished to the Underwriters Representative a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representative, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the applicable Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gk) On or prior to the Closing Date, the Representative shall have received the executed agreements referred to in Section 4(n).
(l) The Shares shall be qualified for sale in such jurisdictions as the Representative may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the applicable Option Closing Date.
(m) Prior to the Closing Date, the Shares shall have been duly authorized for listing on the NNM upon official notice of issuance.
(n) The Company shall have furnished or caused to be furnished to the Underwriters Representative such certificates, in addition to those specifically mentioned herein, as the Underwriters Representative may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the applicable Option Closing Date of any statement in the Offering Registration Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Prospectus or the Final Offering CircularGeneral Disclosure Package, as to the accuracy on such at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentative.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters and the Underwriters did not object thereto in good faith, and the Underwriters shall will have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date, as applicable, and signed by the President and Chief Executive Officer Officer, President or a Vice President of the Company, Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering Circular, in the reasonable judgment of the Underwriters Prospectus (i) there shall not have occurred been a Material Adverse Changematerial adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, and in your judgment makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters in accordance with the terms hereof and thereto.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, there shall have been no litigation or other proceeding instituted against the Company or any of its Subsidiaries or any of their respective officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of the Underwriters, would reasonably be expected to have Company and its Subsidiaries taken as a Material Adverse Effectwhole.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(e) On The Representatives will have received opinions, each dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., satisfactory in form and substance to counsel for the Company, addressed to the Underwriters, dated as of the Closing Datefrom (i) Xxxxx & Xxxxxxx, substantially in the form satisfactory counsel to the UnderwritersCompany, to the effect set forth in Exhibit B, (ii) Xxxxxxxx, Byrd, Richeson, Xxxxxxxx and Xxxxxxxx, special Kansas counsel to the Company, and (iii) Xxxxxx & Xxxxxx, special Texas counsel to the Company.
(f) The Representatives will have received an opinion, dated the Closing Date and the Option Closing Date, from Xxxxx Day, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives.
(g) On the date of the Prospectus, the Accountant shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, containing statements and information of the type ordinary include in accountant's "comfort letters" to underwriters, delivered according to Statement of Accounting Standards No. 72 (or any successor bulletin), with respect to the audited and unaudited financial statements and certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement and the Prospectus. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, the Accountant shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountant, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date and the Option Closing Date that would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at any Subsequent Closingthe Closing Date and the Option Closing Date.
(h) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a each Underwriter an accurate certificate, dated the date of its delivery, signed by each of the Chief Executive Officer, President or a Vice President and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Underwriters, to the effect that that:
(i) each signer of such certificate has carefully examined reviewed the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus (including any documents filed under the Exchange Act and that deemed to each of such person’s knowledge:
i. As be incorporated by reference into the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither since the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereinEffective Date, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.respect and there has been no document required to be filed under the Exchange Act and the Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the Prospectus that has not been so filed;
(ii. Each ) each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.respects; and
(iii. Each ) each of the covenants required herein to be performed by the Company on or prior to the date delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge(i) On or prior to the Closing Date, no the Representatives will have received executed Lock-Up Letter Agreements, in the form of Exhibit C hereto, from the Company's directors and executive officers.
(j) The Shares will be qualified for sale in such states as the Underwriters may reasonably request, each such qualification shall be in effect and not subject to any stop order suspending or other proceeding on the qualification of Closing Date or the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the CommissionOption Closing Date.
v. (k) Subsequent to the date execution and delivery of this Agreement and prior to the Closing Date or the Option Closing Date, as the case may be, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the most recent financial statements possible change, in the Offering Statement and in rating accorded any of the Final Offering Circular, there has been no Material Adverse ChangeCompany's securities by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Act.
(gl) The Shares shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance.
(m) The Company shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of each Underwriter. If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Underwriters.
(h) On Representatives by notice to the Company at any time on or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably requestand, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of Option Shares, at any time prior to the plan of distributionOption Closing Date, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there which termination shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally be without liability on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) the occurrence part of any party to any other calamity or crisis or any change in financialparty, political or economic conditions in the United States or elsewhereexcept that Section 4, if the effect of any Section 6, Section 8 and Section 11 shall at all times be effective and shall survive such event specified in clause (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circulartermination.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective under the Act shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by PaineWebber Incorporated and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, faith and (v) the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Directors of the Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding, in the reasonable judgment of the Underwriters, would reasonably be expected to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriters.
(f) At the Initial Closing and at any Subsequent Closing, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters to the effect that each signer has carefully examined the Offering Statement, the Final Offering Circular and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
i. As of the date of each such certificate, (x) the Offering Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.
ii. Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
iii. Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.
(g) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.regulatory
Appears in 1 contract
Samples: Underwriting Agreement (Credentials Services International Inc)
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption registration of the Shares under the securities or Blue Sky laws 12 13 of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Directors of the Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been, and no development shall have occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of the Underwriters, would reasonably be expected to have a Material Adverse EffectCompany.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, and satisfactory in 13 14 form and substance to counsel for the Underwriters, from Lathxx & Xatkxxx, xxunsel to the Company, to the effect set forth in Exhibit C.
(g) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, and satisfactory in form and substance to counsel for the Underwriters, from Darbx & Xarbx, xxecial intellectual property counsel to the Company, to the effect set forth in Exhibit D.
(h) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, from Orrixx, Xxrrxxxxxx & Xutcxxxxx XXX, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives.
(i) On the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at any Subsequent Closingthe Closing Date and the Option Closing Date.
(j) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a Representatives an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither since the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereinEffective Date, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.;
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.respects;
(iii. ) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.
(g) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.fully
Appears in 1 contract
Samples: Underwriting Agreement (Intervu Inc)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters did Representative does not object thereto in good faith, and (v) the Underwriters Representative shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and its Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) the Company shall have not sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentative, would reasonably be expected to have a Material Adverse Effect.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, as if made on such datewith respect to the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(ef) On The Representative shall have received an opinion and negative assurance letter, dated the Closing Date and the Option Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx Bxxxx Xxxxxxx LLP, Washington, D.C., counsel for to the Company, addressed with respect to the UnderwritersRegistration Statement, dated as of the Closing DateProspectus and this Agreement, substantially which opinion and negative assurance letter shall be satisfactory in all respects to the form satisfactory to Representative and counsel for the Underwriters.
(fg) The Representative shall have received an opinion and negative assurance letter, dated the Closing Date and the Option Closing Date, from Gxxxxxx Procter LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion and negative assurance letter shall be satisfactory in all respects to the Representative.
(h) Concurrently with the execution and delivery of this Agreement, each of the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, addressed to the Representative and in form and substance satisfactory to the Representative, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Closing Date and, as to the Option Shares, the Option Closing Date, each of the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from each such Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date or the Option Closing Date, as the case may be.
(i) At the Initial Closing and at any Subsequent ClosingDate and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters Representative a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representative, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by material respects, or in the case any representation or warranty contains a materiality and or Material Adverse Effect qualification, in all material respects for those representations and warranties that are not qualified by materialityrespects.
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gj) On or prior to the Closing Date, the Representative shall have received the executed agreements referred to in Section 4(n).
(k) The Shares shall be qualified for sale in such jurisdictions as the Underwriter may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the Option Closing Date.
(l) Prior to the Closing Date, the Shares shall have been duly authorized for listing on the NCM upon official notice of issuance.
(m) The Company shall have furnished or caused to be furnished to the Underwriters Representative such certificates, in addition to those specifically mentioned herein, as the Underwriters Representative may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Registration Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Prospectus or the Final Offering CircularGeneral Disclosure Package, as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 6:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated byby the Commission or the authorities of any such jurisdiction, any securities which in your reasonable judgment, makes it impracticable or other governmental authority (including, without limitation, inadvisable to market the Commission)Shares or to enforce the contracts for the sale of the Shares, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof hereof, no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Directors of the Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been a Material Adverse Change or development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus, (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price, (iii) there shall have been no transactions, not in the ordinary course of business, entered into by the Company or any of its Subsidiaries, except as set forth in the Registration Statement and the Prospectus, and no liabilities or obligations incurred by the Company or any of its Subsidiaries, in each case from the latest date as of which the financial condition of the Company and its Subsidiaries is set forth in the Registration Statement and the Prospectus, which would have a Material Adverse Effect, (iv) neither the Company nor any of its Subsidiaries has issued any securities (other than the Shares) or declared or paid any dividend or made any distribution in respect of its capital stock of any class, debt (long term or short term) or, except in the ordinary course of business, liabilities or obligations of the Company or any of its Subsidiaries (contingent or otherwise), except as set forth in the Registration Statement and Prospectus, and (v) no material amount of the assets of the Company or any of its Subsidiaries shall have been pledged, mortgaged or otherwise encumbered, except as set forth in the Registration Statement and Prospectus.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its Subsidiaries or any of their respective officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in the reasonable judgment of the Underwriters, decision or finding would reasonably be expected to have a Material Adverse Effect.
(de) Each of the representations and warranties of the Company and the Selling Security Holder contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of by the Company and the Selling Security Holder and all conditions contained herein contained to be fulfilled or complied with by the Company and the Selling Security Holder at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representatives shall have received opinions, each dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, satisfactory in form and substance to counsel for the Underwriters, from Weil, Gotshal & Xxxxxx, LLP, counsel to the Company, and from counsel to the Selling Security Holder.
(g) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from Xxxxxxxx & Xxxxxxxx LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives.
(h) On the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at any Subsequent Closingthe Closing Date and the Option Closing Date.
(i) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a Representatives an accurate certificate, dated the date of its delivery, signed by each of the President a senior executive officer and the Chief Financial Officer of the Company, in their capacities as officers a senior financial officer of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
1. Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure MaterialsProspectus, and that to each of such person’s knowledge:
i. As (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (B) since the Effective Date, no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.;
ii2. Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.respects; and
iii3. Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge(j) At the Closing Date and, no stop order suspending as to the qualification Option Shares, the Option Closing Date, there shall have been furnished to the Representatives an accurate certificate, dated the date of its delivery, signed by an officer or trustee of the Offering Statement Selling Security Holder, in form and substance satisfactory to the Representatives, to the effect that the representations and warranties of the Selling Security Holder contained herein are true and correct in all material respects on and as of the date of such certificate as if made on and as of the date of such certificate, and each of the covenants and conditions required herein to be performed or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated complied with by the Commission.
v. Subsequent Selling Security Holder on or prior to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there such certificate has been no Material Adverse Changeduly, timely and fully performed or complied with.
(gk) On or prior to the Closing Date, the Representatives shall have received the executed agreements referred to in Section 5(m).
(l) The Shares shall be qualified for sale in such states as the Representatives may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date.
(m) The Shares shall continue to be listed for trading on the New York Stock Exchange, subject only to the issuance of the Shares.
(n) The Assignment, the Warrant Power of Attorney and the Warrant Custody Agreement shall have been duly executed and delivered by the parties thereto and shall be in full force and effect.
(o) The Company and the Selling Security Holder shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy transactions and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, matters contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter the Underwriters hereunder are subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(a) The Prospectus shall have been filed as required by Section 3(a) and (i) No no stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Trustees of the Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings 15 16 threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, in the reasonable judgment of the Underwriters (i) there shall not have occurred been a Material Adverse Changematerial adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor any of its subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters and at the public offering price.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, there shall have been no litigation or other proceeding instituted against the Company or any of its subsidiaries or any of their respective officers or directors or trustees, as the case may be, in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding it is reasonably probable that an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of the Underwriters, would reasonably be expected to have Company and its subsidiaries taken as a Material Adverse Effectwhole.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(e) On The Representatives shall have received one or more opinions, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, and satisfactory in form 16 17 and substance to the Underwriters shall have received the opinion and 10b-5 negative assurances letter Underwriters' counsel from Xxxxxx Xxxxxx LLPGoodxxx, Washington, D.C.Xxocter & Hoar XXX, counsel for to the Company, addressed (i) to the Underwriters, dated as effect set forth in Exhibit D and (ii) concerning the qualification of the Closing Date, substantially in Company as a real estate investment trust under the form satisfactory to the UnderwritersCode.
(f) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from O'Melveny & Myerx XXX, Underwriters' counsel, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives.
(g) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement or incorporated by reference therein. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date hereof if it were required to be dated and delivered at any Subsequent Closingthe Closing Date and the Option Closing Date.
(h) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a Representatives an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus (including any documents filed under the Exchange Act and that deemed to each of such person’s knowledge:
i. As be incorporated by reference into the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.
ii. Each of the representations respect and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
iii. Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.
(g) The Company shall have furnished or caused document required to be furnished to filed under the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.Exchange Act
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430B of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of any of the Offering Statement Registration Statements or preventing or suspending the use of any of the Base Prospectuses, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of any of the Offering Statement Registration Statements or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to any of the Offering Statement Registration Statements, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters did Representatives shall not unreasonably object thereto in good faithor delay, and (v) the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statements and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statements and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statements and the Pricing Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriter at the public offering price.
(d) Since the respective dates as of which information is given in the Registration Statements and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentatives, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representatives, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(de) Each of the representations and warranties of the Company and the Selling Stockholders contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, as if made on such datewith respect to the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company or the Selling Stockholders and all conditions contained herein contained to be fulfilled or complied with by the Company or the Selling Stockholders at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representatives shall have received (i) an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, from Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, counsel to the Company, (ii) an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, from Fraser Xxxxxx Casgrain LLP, counsel to the Rainmaker Systems (Canada) Inc., and (iii) an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, from Xxxxxx Xxxxxxx, LLC, counsel to Sunset Direct, Inc., each in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Schedule VI-A, Schedule VI-B and Schedule VI-C hereto, respectively.
(g) The Representatives shall have received an opinion of (i) O’Melveny & Xxxxx, LLP, dated the Closing Date, counsel to the Management/Director Selling Stockholders, with respect to the Management/Director Selling Stockholders and (ii) Xxxxxx Xxxxxx, LLP, dated the Closing Date, counsel to the ViewCentral Selling Stockholders, with respect to the ViewCentral Selling Stockholders, each in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Schedules VII-A and VII-B hereto, respectively.
(h) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from Xxxxxx &Watkins LLP, counsel to the Underwriter, with respect to the Registration Statements, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Underwriter.
(i) Concurrently with the execution and delivery of this Agreement, BDO Xxxxxxx, LLP shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, BDO Xxxxxxx, LLP shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date and the Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at any Subsequent Closingthe Closing Date and the Option Closing Date.
(j) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters Representatives a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
i) Each signer of such certificate has carefully examined the Offering StatementRegistration Statements, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the Option Closing Date, not misleading and since the Effective Dates no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialitycorrect.
iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully satisfied or fulfilled.
(k) At the Closing Date, there shall be furnished to the Representatives a certificate, dated the date of its delivery, signed by the Selling Stockholders (or the Management/Director Attorneys-in-Fact or the ViewCentral Attorney-in-Fact, as applicable, on their behalf), in form and substance satisfactory to the Representatives, to the effect that the representations and warranties of the Selling Stockholders contained herein are true and correct in all material respects on and as of the date of such certificate as if made on and as of the date of such certificate, and each of the covenants and conditions required herein to be performed or complied with by the Selling Stockholders on or prior to the date of such certificate has been duly, timely and fully performed or complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement (l) On or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent prior to the date of Closing Date, the most recent financial statements Representatives shall have received the executed agreements referred to in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse ChangeSection 5(n).
(gm) The Shares shall be qualified for sale in such jurisdictions as the Representatives may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the Option Closing Date.
(n) Prior to the Closing Date, the Shares shall have been duly authorized for listing on the NGM upon official notice of issuance.
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and, by and with respect to the Company, at the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statements or the Final Offering CircularProspectus, as to the accuracy on such at the Closing Date and, by and with respect to the Company, the Option Closing Date of the representations and warranties of the Company and the Selling Stockholders herein, as to the performance by the Company and the Selling Stockholders of its and their respective obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentatives.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 6:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated byby the Commission or the authorities of any such jurisdiction, any securities which, in the Representatives' reasonable judgment, makes it impracticable or other governmental authority (including, without limitation, inadvisable to market the Commission)Shares or to enforce the contracts for the sale of the Shares, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof hereof, no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Directors of the Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been a Material Adverse Change or development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in the Registration Statement and the Prospectus, (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price, (iii) there shall have been no transactions, not in the ordinary course of business, entered into by the Company or any of its Subsidiaries, except as set forth in the Registration Statement and the Prospectus, and no liabilities or obligations incurred by the Company or any of its Subsidiaries, in each case from the latest date as of which the financial condition of the Company and its Subsidiaries is set forth in the Registration Statement and the Prospectus, which would have a Material Adverse Effect, (iv) neither the Company nor any of its Subsidiaries has issued any securities (other than the Shares) or declared or paid any dividend or made any distribution in respect of its capital stock of any class, debt (long-term or short-term) or, except in the ordinary course of business, liabilities or obligations of the Company or any of its Subsidiaries (contingent or otherwise), except as set forth in the Registration Statement and Prospectus, and (v) no material amount of the assets of the Company or any of its Subsidiaries shall have been pledged, mortgaged or otherwise encumbered, except as set forth in the Registration Statement and Prospectus.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its Subsidiaries or any of their respective officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in the reasonable judgment of the Underwriters, decision or finding would reasonably be expected to have a Material Adverse Effect.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of by the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representatives shall have received opinions, each dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, satisfactory in form and substance to counsel for the Underwriters, from Wilson, Sonsini, Xxxxxxxx & Xxxxxx, counsel to the Company, and from Xxxxx X. Xxxx, General Counsel of the Company.
(g) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from Xxxxxxxx & Xxxxxxxx LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives.
(h) On the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement or incorporated by reference therein. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at any Subsequent Closingthe Closing Date and the Option Closing Date.
(i) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a Representatives an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
1. Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure MaterialsProspectus (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus), and that to each of such person’s knowledge:
i. As (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (B) since the Effective Date, no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.respect and there has been no document required to be filed under the Exchange Act or the Exchange Act Rules and Regulations, which upon such filing would be deemed to be incorporated by reference into the Prospectus, that has not been so filed on a timely basis;
ii2. Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.respects; and
iii3. Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement (j) On or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent prior to the date of Closing Date, the most recent financial statements Representatives shall have received the executed agreements referred to in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse ChangeSection 4(m).
(gk) The Shares shall be qualified for sale in such states as the Representatives may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date.
(l) The Common Stock shall continue to be traded on the Nasdaq National Market and the Shares shall have been duly authorized for listing thereon, subject only to the issuance of the Shares.
(m) The Company shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy transactions and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, matters contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (3do Co)
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement and all post-effective amendments thereto have become effective shall be received by UBS not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by UBS and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption registration of the Shares Units under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters UBS and the Underwriters UBS did not object thereto in good faith, and the Underwriters UBS shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyGeneral Partner (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been, and no development shall have occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Star Entities, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) none of the Star Entities shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of UBS any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units by the Underwriters at the public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against any of the Company Star Entities or any of its their respective officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of the Underwriters, would reasonably be expected to have Star Entities taken as a Material Adverse Effectwhole.
(de) Each of the representations and warranties of the Company Star Parties contained herein shall be true and correct as of each Closing Date in all material respects (except for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that which are not already qualified by materiality, in which case such representations and warranties shall be true and correct in all respects) at the Closing Date and, with respect to the Option Units, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Units, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company Star Parties and all conditions herein contained to be fulfilled or complied with by the Company Star Parties at or prior to such the Closing Date and, with respect to the Option Units, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(ef) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Units, the Option Closing Date, satisfactory in form and substance to counsel for the Underwriters, from Xxxxxxxx Xxxxx LLP, counsel to the Partnership, to the effect set forth in Exhibit C.
(g) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Units, the Option Closing Date, from Xxxxxx & Xxxxxx L.L.P., counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives.
(h) On the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Partnership as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement or incorporated by reference therein. At the Closing Date and, as to the Option Units, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at the Closing Date and the Option Closing Date.
(i) On or prior to the Closing Date, the Underwriters Representatives shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed executed agreements referred to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the UnderwritersSection 4(n).
(fj) At the Initial Closing and at any Subsequent ClosingDate and, as to the Option Units, the Option Closing Date, there shall be furnished to the Underwriters a Representatives an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the CompanyGeneral Partner, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus (including any documents filed under the Exchange Act and that deemed to each of such person’s knowledge:
i. As be incorporated by reference into the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither since the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereinEffective Date, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.respect and there has been no document required to be filed under the Exchange Act and the Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the Prospectus that has not been so filed;
(ii. ) Each of the representations and warranties of the Company Star Parties contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects (except for those representations and warranties which are already qualified by materiality and materiality, in all material respects for those which case such representations and warranties that are not qualified by materiality.true and correct in all respects);
(iii. ) Each of the covenants required herein to be performed by the Company Star Parties on or prior to the date delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company Star Parties on or prior to the delivery date of such certificate has been duly, timely and fully complied with.; and
(iv. To their knowledge) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) there has not been, and no stop order suspending development has occurred which could reasonably be expected to result in, a material adverse change in the qualification general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Offering Statement Star Entities taken as a whole, whether or not arising from transactions in the ordinary course of any part thereof has been issued and no proceedings for that purpose have been instituted business, in each case other than as set forth in or are contemplated by the Commission.
v. Subsequent to Registration Statement and the date Prospectus and (B) none of the most recent financial statements Star Entities have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court, legislative, administrative, regulatory or other governmental action, investigation, order or decree, which is not set forth in the Offering Registration Statement and in the Final Offering Circular, there has been no Material Adverse ChangeProspectus; and such other matters as the Representatives may reasonably request.
(gk) The Company Units shall be qualified for sale in such states as the Representatives may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date.
(l) Prior to the Closing Date and the Option Closing Date, the Firm Units and the Option Units, respectively shall have been duly authorized for listing on NYSE upon official notice of issuance.
(m) The Partnership shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company Star Parties herein, as to the performance by the Company Star Parties of its their obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter the Underwriters hereunder are subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(a) The Prospectus shall have been filed as required by Section 3(a) and (i) No no stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters and the Underwriters did not object thereto in good faith, and the Underwriters shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Trustees of the Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the reasonable Registration Statement and the Prospectus and (ii) neither the Company nor any of its subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Underwriters there shall not have occurred a Material Adverse Changeany such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters and at the public offering price.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, there shall have been no litigation or other proceeding instituted against the Company or any of its subsidiaries or any of their respective officers or directors or trustees, as the case may be, in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding it is reasonably probable that an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of the Underwriters, would reasonably be expected to have Company and its subsidiaries taken as a Material Adverse Effectwhole.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(e) On the Closing Date, the The Underwriters shall have received one or more opinions, dated the opinion Closing Date and, with respect to the Option Shares, the Option Closing Date, and 10b-5 negative assurances letter satisfactory in form and substance to the Underwriters' counsel from Xxxxxx Xxxxxx LLPGoodxxx, Washington, D.C.Xxocter & Hoar XXX, counsel for to the Company, addressed (i) to the Underwriterseffect set forth in EXHIBIT D and (ii) concerning the qualification of the Company as a real estate investment trust under the Code.
(f) The Underwriters shall have received an opinion, dated as of the Closing Date and the Option Closing Date, substantially from O'Melveny & Myerx XXX, Underwriters' counsel, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in the form satisfactory all respects to the Underwriters.
(fg) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery, addressed to the Underwriters and in form and substance satisfactory to the Underwriters, confirming that they are independent accountants with respect to the Company as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement or incorporated by reference therein. At the Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date and the Option Closing Date.
(h) At the Initial Closing and at any Subsequent ClosingDate and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Underwriters, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus (including any documents filed under the Exchange Act and that deemed to each of such person’s knowledge:
i. As be incorporated by reference into the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectrespect and there has been no document required to be filed under the Exchange Act and the Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the Prospectus that has not been so filed.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityrespects.
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge(i) The Shares shall be qualified for sale in such states as the Underwriters may reasonably request, no each such qualification shall be in effect and not subject to any stop order suspending or other proceeding on the qualification of Closing Date and the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse ChangeOption Closing Date.
(gj) Prior to the Closing Date, the Shares shall have been duly authorized for listing by the New York Stock Exchange upon official notice of issuance.
(k) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein as to the performance by the Company of its obligations hereunder, hereunder or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 and Rule 430A of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then Regulations shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters did Representatives do not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding, in the reasonable judgment of the Underwriters, would reasonably be expected to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriters.
(f) At the Initial Closing and at any Subsequent Closing, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters to the effect that each signer has carefully examined the Offering Statement, the Final Offering Circular and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
i. As of the date of each such certificate, (x) the Offering Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.
ii. Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
iii. Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.
(g) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or been a material disruption in commercial banking or securities settlement or clearance services adverse change in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.general
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., New York time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters did Representative does not object thereto in good faith, and (v) the Underwriters Representative shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, there shall not have been a material adverse change in the general affairs, business, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, if in the reasonable judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company or Company, any of its Subsidiaries, or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentative, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those (in the case of all other representations and warranties that are not qualified by materialitywarranties) at the Closing Date and, as if made on such datewith respect to the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representative shall have received a written opinion and negative assurances statement, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters from Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP.
(g) The Representative shall have received an opinion, dated the Closing Date and the Option Closing Date, from Xxxxxx, Hall & Xxxxxxx LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representative.
(h) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, addressed to the Representative and in form and substance satisfactory to the Representative, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date and the Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at any Subsequent Closingthe Closing Date and the Option Closing Date.
(i) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters Representative a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, Company in their capacities capacity as officers such and on behalf of the Company, in form and substance reasonably satisfactory to the Underwriters Representative, to the effect that each that:
(i) Each signer of such certificate has carefully examined reviewed the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those (in the case of all other representations and warranties that are not qualified by materialitywarranties).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly performed and each condition herein required to be fulfilled or complied with by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be fulfilled or complied with by the Company on with.
(j) On or prior to the delivery of such certificate has been dulyClosing Date, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of Representative shall have received the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent executed agreements referred to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse ChangeSection 4(n).
(gk) The Shares shall be qualified for sale in such jurisdictions as the Representative may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the Option Closing Date.
(l) Prior to the Closing Date, the Shares shall have been duly authorized for listing on the NGM upon official notice of issuance.
(m) The Company shall have furnished or caused to be furnished to the Underwriters Representative such certificates, in addition to those specifically mentioned herein, as the Underwriters Representative may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus, as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentative.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (Bottomline Technologies Inc /De/)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 P.M., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of any preliminary prospectus, the Prospectus, or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters did Representatives do not object thereto in good faith, and (v) the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentatives, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representatives, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(ef) On The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, satisfactory in form and substance to the Representatives and counsel for the Underwriters from Xxxxxxx Xxxxxxx, LLP, counsel to the Company, substantially in the form attached hereto as Appendix A.
(g) The Representatives shall have received an opinion, dated the opinion Closing Date and 10b-5 negative assurances letter the Option Closing Date, from Xxxxxx Xxxxxx & Green, LLP, Washington, D.C., intellectual property counsel for the Company, addressed in the form attached hereto as Exhibit B.
(h) The Representatives shall have received an opinion, dated the Closing Date or the Option Closing Date, as the case may be, from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel to the Underwriters, dated as with respect to the Registration Statement and the Prospectus, which shall be satisfactory in all respects to the Representatives.
(i) Concurrently with the execution and delivery of this Agreement, each of the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained in the Registration Statement, the Prospectus and the General Disclosure Package. At the Closing Date and, as to the Option Shares, the Option Closing Date, substantially each of the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the form satisfactory letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the UnderwritersClosing Date or the Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date or the Option Closing Date, as the case may be.
(fj) At the Initial Closing and at any Subsequent ClosingDate and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters Representatives a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the Pricing General Disclosure Materials, Package and that to each of such person’s knowledge:
i. As (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations and warranties that are not qualified by materiality(in the case of any other representation or warranty).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gk) On or prior to the Closing Date, the Representatives shall have received the executed agreements referred to in Section 4(n).
(l) The Shares shall be qualified for sale in such jurisdictions as the Representatives may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the Option Closing Date.
(m) Prior to the Closing Date, the Shares shall have been duly authorized for listing on the NGM upon official notice of issuance.
(n) The Company shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Registration Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Prospectus or the Final Offering CircularGeneral Disclosure Package, as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentatives.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened by the Commission or contemplated by, the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer of the Company, Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been, and no development shall have occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor any of its Subsidiaries shall have sustained any loss or interference with its business or properties material to the Company and its Subsidiaries taken as a whole from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or from any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its Subsidiaries or any of their respective officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of the Underwriters, would reasonably be expected to have Company and its Subsidiaries taken as a Material Adverse Effectwhole.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, and satisfactory in form and substance to counsel for the Underwriters, from Xxxxxxxxx & Xxxxxxxxx L.L.P., counsel to the Company, to the effect set forth in Exhibit D.
(g) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives.
(h) On the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company as required by the Act and the Rules and Regulations and, in the case of KPMG Peat Marwick LLP, with respect to the financial and other statistical and numerical information contained in the Registration Statement. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, KPMG Peat Marwick LLP shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in their letter, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at any Subsequent Closingthe Closing Date and the Option Closing Date.
(i) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a Representatives an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither since the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereinEffective Date, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.;
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.respects;
(iii. ) Each of the covenants required herein to be performed by the Company on or prior to the date delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery date of such certificate has been duly, timely and fully complied with.; and
(iv. To their knowledge) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) there has not been, and no stop order suspending development has occurred which could reasonably be expected to result in, a material adverse change in the qualification general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Offering Statement Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of any part thereof has been issued and no proceedings for that purpose have been instituted business, in each case other than as set forth in or are contemplated by the Commission.
v. Subsequent Registration Statement and the Prospectus and (B) neither the Company nor any of its Subsidiaries has sustained any loss or interference with its business or properties material to the date of the most recent financial statements Company and its Subsidiaries taken as a whole from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or from any court or legislative or other governmental action, order or decree, which is not set forth in the Offering Registration Statement and in the Final Offering Circular, there has been no Material Adverse ChangeProspectus.
(gj) On or prior to the Closing Date, the Representatives shall have received the executed agreements referred to in Section 4(n).
(k) The Shares shall be qualified for sale in such states as the Representatives may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date.
(l) Prior to the Closing Date, the Shares shall have been duly authorized for listing by the New York Stock Exchange upon official notice of issuance.
(m) The National Association of Securities Dealers, Inc. shall have approved the underwriting terms and arrangements and such approval shall not have been withdrawn or limited.
(n) The Company shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering Circular, Prospectus as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentatives.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (Advanced Communications Group Inc/De/)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430B of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then Regulations shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of the Base Prospectus, any Preliminary Prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters did Representative do not object thereto in good faith, and (v) the Underwriters Representative shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the applicable Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentative, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option Shares, at the applicable Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(ef) On The Representative shall have received an opinion and negative assurance letter, each dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx Xxxxx & Xxxxxxx LLP, Washington, D.C., counsel for to the Company, addressed in form and substance reasonably satisfactory to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory counsel to the Underwriters.
(fg) The Representative shall have received an opinion and negative assurance letter, each dated the Closing Date or the applicable Option Closing Date, as the case may be, from DLA Piper LLP (US), counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion and negative assurance letter shall be satisfactory in all respects to the Representative.
(h) Concurrently with the execution and delivery of this Agreement, at the Closing Date and, as to the Option Shares, the applicable Option Closing Date, the Accountants shall have furnished to the Representative a customary “comfort letter” letter, dated the date of its delivery, addressed to the Representative and in form and substance satisfactory to the Representative.
(i) At the Initial Closing and at any Subsequent ClosingDate and, as to the Option Shares, the applicable Option Closing Date, there shall be furnished to the Underwriters Representative a certificate, dated the date of its delivery, signed by each of the President and the Chief Financial Officer of the Company, in their capacities as officers of the Companysuch, in form and substance satisfactory to the Underwriters Representative, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the applicable Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gj) On or prior to the Closing Date, the Representative shall have received the executed agreements referred to in Section 4(m).
(k) The Shares shall be qualified for sale in such jurisdictions as the Representative may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the applicable Option Closing Date.
(l) The Company shall have furnished or caused to be furnished to the Underwriters Representative such certificates (including a Secretary’s Certificate and any good standing certificates), in addition to those specifically mentioned herein, as the Underwriters Representative may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the applicable Option Closing Date of any statement in the Offering Registration Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Prospectus or the Final Offering CircularGeneral Disclosure Package, as to the accuracy on such at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentative.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (Vicor Corp)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:15 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of any preliminary prospectus, the Prospectus, or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters did Representatives do not object thereto in good faith, and (v) the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the applicable Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentatives, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representatives, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option Shares, at the applicable Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(ef) On The Representatives shall have received an opinion (including a negative assurance letter), dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, satisfactory in form and substance to the Representatives and counsel for the Underwriters from DLA Piper LLP (US), counsel to the Company.
(g) The representatives shall have received an opinion and negative assurance letter, dated the Closing Date or the applicable Option Closing Date, as the case may be, from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion and negative assurance letter shall be satisfactory in all respects to the Representatives.
(h) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained in the Registration Statement, the Prospectus and the General Disclosure Package. At the Closing Date and, as to the Option Shares, the applicable Option Closing Date, the Underwriters Accountants shall have received furnished to the opinion and 10b-5 negative assurances Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from Xxxxxx Xxxxxx LLPthe Accountants, Washington, D.C., counsel for that nothing has come to their attention during the Company, addressed period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Underwriters, dated as of Closing Date or the applicable Option Closing Date, substantially as the case may be, which would require any change in their letter dated the form satisfactory date hereof if it were required to be dated and delivered at the UnderwritersClosing Date or the applicable Option Closing Date, as the case may be.
(fi) At the Initial Closing and at any Subsequent ClosingDate and, as to the Option Shares, the applicable Option Closing Date, there shall be furnished to the Underwriters Representatives a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance reasonably satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the Pricing General Disclosure Materials, Package and that to each of such person’s knowledge:
i. As (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the applicable Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements fulfilled in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changeall material respects.
(gj) On or prior to the Closing Date, the Representatives shall have received the executed agreements referred to in Section 4(n).
(k) The Shares shall be qualified for sale in such jurisdictions as the Representatives may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the applicable Option Closing Date.
(l) Prior to the Closing Date, the Shares shall have been duly authorized for listing on the NGM upon official notice of issuance.
(m) The Company shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the applicable Option Closing Date of any statement in the Offering Registration Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Prospectus or the Final Offering CircularGeneral Disclosure Package, as to the accuracy on such at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentatives.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (Xtera Communications, Inc.)
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption registration of the Shares Units under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Directors of the General Partner and the Chief Financial Officer of the CompanyGeneral Partner (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been, and no development shall have occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Partnership and its Subsidiaries or Petro and its subsidiaries, in each case taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Partnership nor any of its Subsidiaries, nor Petro nor any of its Subsidiaries, shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units by the Underwriters at the public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company General Partner, the Partnership or any of its Subsidiaries or Petro or any of its Subsidiaries or any of their respective officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would materially and adversely affect the business, properties, business prospects, condition (financial or otherwise) or results of operations of the Partnership and its Subsidiaries or Petro and its subsidiaries, as the case may be, in the reasonable judgment of the Underwriters, would reasonably be expected to have each case taken as a Material Adverse Effectwhole.
(de) Each of the representations and warranties of the Company Partnership contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Units, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Units, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company Partnership and all conditions herein contained to be fulfilled or complied with by the Company Partnership at or prior to such the Closing Date and, with respect to the Option Units, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(ef) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Units, the Option Closing Date, satisfactory in form and substance to counsel for the Underwriters, from Xxxxxxxx Xxxxx Xxxxxxxx Xxxx & Ballon LLP, counsel to the Partnership, to the effect set forth in Exhibit D (to the extent such opinions are not covered by the opinion received pursuant to Section 5(g) hereof).
(g) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Units, the Option Closing Date, satisfactory in form and substance to counsel for the Underwriters, from Xxxxxxx & Xxxxx LLP, counsel to the Partnership, to the effect set forth in Exhibit D (to the extent such opinions are not covered by the opinion received pursuant to Section 5(f) hereof).
(h) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from Xxxxxx & Xxxxxxx, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives.
(i) On the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Partnership as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement or incorporated by reference therein. At the Closing Date and, as to the Option Units, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at the Closing Date and the Option Closing Date.
(j) On or prior to the Closing Date, the Underwriters Representatives shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed executed agreements referred to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the UnderwritersSection 4(n).
(fk) At the Initial Closing and at any Subsequent ClosingDate and, as to the Option Units, the Option Closing Date, there shall be furnished to the Underwriters a Representatives an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the CompanyGeneral Partner, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus (including any documents filed under the Exchange Act and that deemed to each of such person’s knowledge:
i. As be incorporated by reference into the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither since the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereinEffective Date, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.respect and there has been no document required to be filed under the Exchange Act and the Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the Prospectus that has not been so filed;
(ii. ) Each of the representations and warranties of the Company Partnership contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.respects;
(iii. ) Each of the covenants required herein to be performed by the Company Partnership on or prior to the date delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company Partnership on or prior to the delivery date of such certificate has been duly, timely and fully complied with.; and
(iv. To their knowledge) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) there has not been, and no stop order suspending development has occurred which could reasonably be expected to result in, a material adverse change in the qualification general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Offering Statement Partnership and its Subsidiaries or Petro and its subsidiaries, in each case taken as a whole, whether or not arising from transactions in the ordinary course of any part thereof has been issued and no proceedings for that purpose have been instituted business, in each case other than as set forth in or are contemplated by the Commission.
v. Subsequent to Registration Statement and the date Prospectus and (B) neither the Partnership nor any of the most recent financial statements its Subsidiaries, nor Petro nor any of its Subsidiaries, has sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Offering Registration Statement and in the Final Offering CircularProspectus, there has been no Material Adverse Changeand such other matters as the Representatives may reasonably request.
(gl) The Company Units shall be qualified for sale in such states as the Representatives may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date.
(m) Prior to the Closing Date, the Units shall have been duly authorized for listing on NYSE upon official notice of issuance.
(n) The National Association of Securities Dealers, Inc. shall have approved the underwriting terms and arrangements and such approval shall not have been withdrawn or limited.
(o) The Partnership shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company Partnership herein, as to the performance by the Company Partnership of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(hp) On or prior to the date hereofClosing Date, the Company shall have furnished to the Underwriters an agreement substantially Partnership will acquire Petro in the form of Exhibit B hereto from each of Transaction substantially as set forth in the Company’s officersProspectus and in the Partnership's Registration Statement on Form S-4 (Registration No. 333-59807), directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement as amended.
(q) The Merger Agreement shall be in full force and effect on the Closing Date.
(i) The Shares effect, all conditions thereto shall have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company satisfied, and no condition shall have furnished or caused to be furnished to been waived without the Underwriters on each Closing Date satisfactory evidence express written consent of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictionsRepresentatives.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters did Representative does not object thereto in good faith, and (v) the Underwriters Representative shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the applicable Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentative, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, as if made on such datewith respect to the Option Shares, at the applicable Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representative shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, satisfactory in form and substance to the Representative and U.S. counsel for the Underwriters from Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, counsel to the Company, as set forth on Exhibit A. Such counsel shall also furnish to the Representative a negative assurance statement, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(g) The Representative shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters from Shibolet & Co., Israeli counsel to the Company, as set forth on Exhibit B. Such counsel shall also furnish to the Representative a negative assurance statement, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(h) The Representative shall have received an opinion and negative assurance letter, dated the Closing Date and the Option Closing Date, from Proskauer Rose LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion and negative assurance letter shall be satisfactory in all respects to the Representative.
(i) The Representative shall have received an opinion, dated the Closing Date and the Option Closing Date, from Meitar Liquornik Xxxx Xxxxxx Tal, Israeli counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representative.
(j) Concurrently with the execution and delivery of this Agreement, Xxxx Xxxxx Xxxxxx and Kaiserer shall have furnished to the Representative a letter, dated the date of its delivery, addressed to the Representative and in form and substance satisfactory to the Representative, confirming that it is an independent accountant with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, Xxxx Xxxxx Xxxxxx and Kasierer shall have furnished to the Representative a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountant, that nothing has come to its attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the Option Closing Date, as the case may be, which would require any change in its letter dated the date hereof if it were required to be dated and delivered at any Subsequent Closingthe Closing Date or the Option Closing Date, as the case may be.
(k) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters Representative a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representative, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (as updated to include any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents, as updated, are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither since the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects for those representations (except that any representation and warranties warranty qualified by materiality shall be true and correct in all material respects for those representations and warranties that are not qualified by materialityrespects).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gl) On or prior to the Closing Date, the Representative shall have received the executed agreements referred to in Section 4(n).
(m) The Shares shall be qualified for sale in such jurisdictions as the Representative may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the Option Closing Date.
(n) Prior to the Closing Date, the Shares shall have been duly authorized for listing on each of the NASDAQ and the TASE.
(o) The Company shall have furnished or caused to be furnished to the Underwriters Representative such certificates, in addition to those specifically mentioned herein, as the Underwriters Representative may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Registration Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Prospectus or the Final Offering CircularGeneral Disclosure Package, as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentative.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(a) Notification that the Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 of the Rules and Regulations and Rule 430A shall have been made.
(b) At the closing, (i) No no stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification of the Offering Statement or the qualification or exemption 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 threatened or contemplated by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) Commission shall have been complied with to the satisfaction of the staff of the Commission or such authorities and to the reasonable satisfaction of Counsel to the Underwriters (iviii) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Directors of the Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses clause (ii) and (iiii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been a Material Adverse Change, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its Subsidiaries or any of their respective officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in the reasonable judgment of the Underwriters, decision or finding would be reasonably be expected likely to have a Material Adverse EffectAffect.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(ef) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, and satisfactory in form and substance to counsel for the Underwriters, from (i) Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois) ("Skadden"), counsel to the Company, to the effect set forth in Exhibit D, and (ii) Xxxxxx Xxxxxx, General Counsel to the Company, to the effect set forth in Exhibit E. In rendering such opinion, Skadden shall have received, and may rely on, such certificates and other documents as they may reasonably request to pass upon such matters (including the opinion of Xxxxxx Xxxxxx as to Indiana law).
(g) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from Xxxxxx & Xxxxxx L.L.P., counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives.
(h) On the Closing Datedate of the Prospectus, the Underwriters C&L shall have received furnished to the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLPRepresentatives a letter, Washington, D.C., counsel for dated the Companydate of its delivery, addressed to the UnderwritersRepresentatives and in form and substance satisfactory to the Representatives, dated confirming that they are independent accountants with respect to the Company as of required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement or incorporated by reference therein. At the Closing Date and, as to the Option Shares, the Option Closing Date, substantially C&L shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in their letter dated the date of the Prospectus, that nothing has come to their attention during the period from the date of their letter dated the date of the Prospectus to a date (specified in the form satisfactory letter) not more than five days prior to the UnderwritersClosing Date and the Option Closing Date which would require any material change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at the Closing Date and the Option Closing Date.
(fi) At the Initial Closing and at any Subsequent ClosingDate and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters Representatives a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer or President and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each signer has carefully examined the Offering Statement, the Final Offering Circular and the Pricing Disclosure Materials, and that to each of such person’s knowledgethat:
i. As of the date of each such certificate, (xi) the Offering Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.
ii. Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.respects;
iii. (ii) Each of the covenants required herein to be performed by the Company on or prior to the date delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery date of such certificate has been duly, timely and fully complied with.; and
iv. To their knowledge(iii) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, no stop order suspending the qualification of the Offering Statement (A) there has not been a Material Adverse Change other than as set forth in or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to Registration Statement and the date Prospectus, and (B) neither the Company nor any of the most recent financial statements its Subsidiaries has sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Offering Registration Statement and in the Final Offering CircularProspectus, there has been no except any such loss or interference which would not reasonably be expected to have a Material Adverse ChangeEffect.
(gj) On or prior to the Closing Date, the Representatives shall have received the executed agreements referred to in Section 4(m).
(k) The Shares shall be qualified for sale in such states as the Representatives may reasonably request, subject to Section 4(f).
(l) Prior to the Closing Date, the Shares shall have been duly authorized for listing by the New York Stock Exchange, subject only to official notice of issuance.
(m) The NASD shall have approved the underwriting terms and arrangements, and such approval shall not have been withdrawn or limited.
(n) On the Closing Date and the Option Closing Date, the Company shall have furnished or caused to be furnished to the Underwriters Representatives such certificatesdocuments, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to enable them to determine the accuracy and completeness on any Closing Date and of any statement in the Offering StatementRegistration Statement or the Prospectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, the Preliminary Offering Circular, accuracy at the Pricing Disclosure Materials or Closing Date and the Final Offering Circular, as to the accuracy on such Option Closing Date of the representations and warranties of the Company as to herein, the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentatives.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430B of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering ADS Registration Statement, the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering ADS Registration Statement, the Registration Statement or the qualification or exemption registration of the Shares ADSs under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement ADS Registration Statement, the Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters did Representative does not object thereto in good faith, and (v) the Underwriters shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the applicable Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Offered ADSs by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentative, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Offered ADSs by the Underwriters at the initial public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option ADSs, at the applicable Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option ADSs, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Underwriters shall have received an opinion, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters from Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, U.S. counsel to the Company and Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx (Europe) LLP, French counsel to the Company. In addition, such U.S. counsel shall state that in connection with such counsel’s participation in the preparation of the Registration Statement, the Prospectus and the General Disclosure Package, such counsel has no reason to believe (i) that, as of the Effective Date, the Registration Statement or any further amendment thereto (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no belief) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) that the General Disclosure Package (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no belief), as of the Applicable Time contained any 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, or (iii) that the Prospectus, or any further amendment or supplement thereto, as of its date and the Closing Date and, if later, the applicable Option Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no belief).
(g) The Underwriters shall have received an opinion, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters, of Xxxxxxx & Xxxxxx LLP, special counsel for the Company with respect to patents and proprietary rights, addressed to the Representative on behalf of itself and the several Underwriters.
(h) The Underwriters shall have received an opinion, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters, of Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel for the Depositary, addressed to the addressed to the Representative on behalf of itself and the several Underwriters.
(i) The Underwriters shall have received a negative assurance letter, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, as the case may be, from Xxxxxxx Procter LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which negative assurance letter shall be satisfactory in all respects to the Representative.
(j) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery, addressed to the Representative on behalf of itself and the several Underwriters and in form and substance satisfactory to the Representative, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Initial Closing Date and, as to the Option ADSs, the applicable Option Closing Date, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at any Subsequent Closingthe Closing Date or the applicable Option Closing Date, as the case may be.
(k) At the Closing Date and, as to the Option ADSs, the applicable Option Closing Date, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representative, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the applicable Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gl) At the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, there shall have been furnished to the Underwriters a certificate, dated the delivery date, and addressed to the Representative on behalf of itself and the several Underwriters, signed by the Chief Financial Officer of the Company, in form and substance satisfactory to the Representative.
(m) On or prior to the Closing Date, the Underwriters shall have received the executed agreements referred to in Section 4(n).
(n) The Deposit Agreement shall be in full force and effect and the Company and the Depositary shall have taken all action necessary to permit the deposit of the Ordinary Shares and the issuance of the Offered ADSs in accordance with the Deposit Agreement.
(o) The Depositary shall have furnished or caused to be furnished to the Underwriters a certificate satisfactory to the Representative of one of its authorized officers evidencing the deposit with the custodian of the Ordinary Shares against issuance of the ADRs evidencing the Offered ADSs, the execution, issuance, countersignature (if applicable) and delivery of the ADRs evidencing the Offered ADSs pursuant to the Deposit Agreement and such other matters related thereto as the Representative reasonably requests.
(p) The Offered ADSs shall be qualified for sale in such jurisdictions as the Underwriters may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the applicable Option Closing Date.
(q) Prior to the Closing Date, the Offered ADSs and the Underlying Shares shall have been duly authorized for listing on the NYSE upon official notice of issuance.
(r) On the Closing Date, there shall have been furnished to the Underwriters a certificate, dated the Closing Date, and addressed to the Representative on behalf of itself and the several Underwriters, signed by the Chief Financial Officer of the Company, in form and substance reasonably satisfactory to the Representative.
(s) The Company shall have furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters Representative may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the applicable Option Closing Date of any statement in the Offering Registration Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Prospectus or the Final Offering CircularGeneral Disclosure Package, as to the accuracy on such at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering ADS Registration Statement, the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering ADS Registration Statement, the Registration Statement or the qualification or exemption registration of the Shares ADSs under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement ADS Registration Statement, the Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters did Representative does not object thereto in good faith, and (v) the Underwriters shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the applicable Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Offered ADSs by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentative, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Offered ADSs by the Underwriters at the initial public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option ADSs, at the applicable Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option ADSs, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Underwriters shall have received an opinion, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters from Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, U.S. counsel to the Company and Orrick, Xxxxxxx Xxxxxx LLP, French counsel to the Company. In addition, such U.S. counsel shall state that in connection with such counsel’s participation in the preparation of the Registration Statement, the Prospectus and the General Disclosure Package, such counsel has no reason to believe (i) that, as of the Effective Date, the Registration Statement or any further amendment thereto (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no belief) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) that the General Disclosure Package (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no belief), as of the Applicable Time contained any 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, or (iii) that the Prospectus, or any further amendment or supplement thereto, as of its date and the Closing Date and, if later, the applicable Option Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no belief).
(g) The Underwriters shall have received an opinion, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters, of each of Xxxxxxx & Xxxxxx LLP and VIDON Brevets & Strategie SAS, special counsel for the Company with respect to patents and proprietary rights, addressed to the Representative on behalf of itself and the several Underwriters.
(h) The Underwriters shall have received an opinion, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters, of Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel for the Depositary, addressed to the addressed to the Representative on behalf of itself and the several Underwriters.
(i) The Underwriters shall have received an opinion and negative assurance letter, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, as the case may be, from Xxxxxxxxxx Xxxxxxx LLP, U.S. counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion and negative assurance letter shall be satisfactory in all respects to the Representative.
(j) The Underwriters shall have received an opinion and negative assurance letter, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, as the case may be, from Xxxxxx Xxxxxxx LLP, French counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion and negative assurance letter shall be satisfactory in all respects to the Representative.
(k) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery, addressed to the Representative on behalf of itself and the several Underwriters and in form and substance satisfactory to the Representative, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Initial Closing Date and, as to the Option ADSs, the applicable Option Closing Date, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at any Subsequent Closingthe Closing Date or the applicable Option Closing Date, as the case may be.
(l) At the Closing Date and, as to the Option ADSs, the applicable Option Closing Date, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representative, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the applicable Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gm) At the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, there shall have been furnished to the Underwriters a certificate, dated the delivery date, and addressed to the Representative on behalf of itself and the several Underwriters, signed by the chief financial officer of the Company, in form and substance satisfactory to the Representative.
(n) On or prior to the Closing Date, the Underwriters shall have received the executed agreements referred to in Section 4(n).
(o) The Deposit Agreement shall be in full force and effect and the Company and the Depositary shall have taken all action necessary to permit the deposit of the Ordinary Shares and the issuance of the Offered ADSs in accordance with the Deposit Agreement.
(p) The Depositary shall have furnished or caused to be furnished to the Underwriters a certificate satisfactory to the Representative of one of its authorized officers evidencing the deposit with the custodian of the Ordinary Shares against issuance of the ADRs evidencing the Offered ADSs, the execution, issuance, countersignature (if applicable) and delivery of the ADRs evidencing the Offered ADSs pursuant to the Deposit Agreement and such other matters related thereto as the Representative reasonably requests.
(q) The Offered ADSs shall be qualified for sale in such jurisdictions as the Underwritesr may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the applicable Option Closing Date.
(r) Prior to the Closing Date, the Offered ADSs and the Underlying Shares shall have been duly authorized for listing on the NYSE upon official notice of issuance.
(s) On the Closing Date, there shall have been furnished to the Underwriters a certificate, dated the Closing Date, and addressed to the Representative on behalf of itself and the several Underwriters, signed by the Chief Financial Officer of the Company, in form and substance reasonably satisfactory to the Representative.
(t) The Company shall have furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters Representative may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the applicable Option Closing Date of any statement in the Offering Registration Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Prospectus or the Final Offering CircularGeneral Disclosure Package, as to the accuracy on such at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430B of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering ADS Registration Statement, the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering ADS Registration Statement, the Registration Statement or the qualification or exemption registration of the Shares ADSs under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement ADS Registration Statement, the Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters did Representative does not object thereto in good faith, and (v) the Underwriters shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the applicable Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Offered ADSs by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentative, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Offered ADSs by the Underwriters at the initial public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option ADSs, at the applicable Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option ADSs, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Underwriters shall have received an opinion, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters from Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, U.S. counsel to the Company and Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx (Europe) LLP, French counsel to the Company. In addition, such U.S. counsel shall state that in connection with such counsel’s participation in the preparation of the Registration Statement, the Prospectus and the General Disclosure Package, such counsel has no reason to believe (i) that, as of the Effective Date, the Registration Statement or any further amendment thereto (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no belief) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) that the General Disclosure Package (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no belief), as of the Applicable Time contained any 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, or (iii) that the Prospectus, or any further amendment or supplement thereto, as of its date and the Closing Date and, if later, the applicable Option Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no belief).
(g) The Underwriters shall have received an opinion, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters, of Xxxxxxx & Xxxxxx LLP, special counsel for the Company with respect to patents and proprietary rights, addressed to the Representative on behalf of itself and the several Underwriters.
(h) The Underwriters shall have received an opinion, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters, of Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel for the Depositary, addressed to the addressed to the Representative on behalf of itself and the several Underwriters.
(i) The Underwriters shall have received a negative assurance letter, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, as the case may be, from DLA Piper LLP (US), counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which negative assurance letter shall be satisfactory in all respects to the Representative.
(j) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery, addressed to the Representative on behalf of itself and the several Underwriters and in form and substance satisfactory to the Representative, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Initial Closing Date and, as to the Option ADSs, the applicable Option Closing Date, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at any Subsequent Closingthe Closing Date or the applicable Option Closing Date, as the case may be.
(k) At the Closing Date and, as to the Option ADSs, the applicable Option Closing Date, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representative, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the applicable Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gl) Concurrently with the execution and delivery of this Agreement and at the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, there shall have been furnished to the Underwriters a certificate, dated the delivery date, and addressed to the Representative on behalf of itself and the several Underwriters, signed by the Chief Financial Officer of the Company, in form and substance satisfactory to the Representative.
(m) On or prior to the Closing Date, the Underwriters shall have received the executed agreements referred to in Section 4(n).
(n) The Deposit Agreement shall be in full force and effect and the Company and the Depositary shall have taken all action necessary to permit the deposit of the Ordinary Shares and the issuance of the Offered ADSs in accordance with the Deposit Agreement.
(o) The Depositary shall have furnished or caused to be furnished to the Underwriters a certificate satisfactory to the Representative of one of its authorized officers evidencing the deposit with the custodian of the Ordinary Shares against issuance of the ADRs evidencing the Offered ADSs, the execution, issuance, countersignature (if applicable) and delivery of the ADRs evidencing the Offered ADSs pursuant to the Deposit Agreement and such other matters related thereto as the Representative reasonably requests.
(p) The Offered ADSs shall be qualified for sale in such jurisdictions as the Underwriters may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the applicable Option Closing Date.
(q) Prior to the Closing Date, the Offered ADSs and the Underlying Shares shall have been duly authorized for listing on the NYSE upon official notice of issuance.
(r) On the Closing Date, there shall have been furnished to the Underwriters a certificate, dated the Closing Date, and addressed to the Representative on behalf of itself and the several Underwriters, signed by the Chief Financial Officer of the Company, in form and substance reasonably satisfactory to the Representative.
(s) The Company shall have furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters Representative may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the applicable Option Closing Date of any statement in the Offering Registration Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Prospectus or the Final Offering CircularGeneral Disclosure Package, as to the accuracy on such at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter the Underwriters hereunder are subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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 threatened or contemplated by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, any Permitted Free Writing Prospectus or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Grandview and the Underwriters Grandview did not object thereto in good faith, and the Underwriters Grandview shall have received certificates of the Company, dated as of each the Initial Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus: (i) there shall not have been a Material Adverse Change, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the reasonable judgment of Grandview any such development makes it impracticable or inadvisable to consummate the Underwriters there shall not have occurred a Material Adverse Changesale and delivery of the Shares to Investors as contemplated hereby.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding, in the reasonable judgment of the UnderwritersGrandview, would reasonably be expected to could have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityDate, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the The Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwritersan opinion, dated as of the Initial Closing Date, substantially in the form satisfactory of Xxxxxx + Xxxxxx LLP with respect to the Underwritersmatters set forth in Exhibit F hereto.
(f) Satisfactory completion by Grandview of its due diligence investigation and analysis of: (i) the Company’s arrangements with its officers, directors, employees, affiliates, customers and suppliers, (ii) the audited historical financial statements of the Company for the fiscal years ended June 30, 2007, 2008 and 2009 and (iii) the Company’s projected financial results for the fiscal quarters ending March 31, 2010 through 2011.
(g) The execution of this Underwriting Agreement.
(h) The Company meeting the criteria necessary for inclusion of the Common Stock on the NASDAQ Capital Market and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing.
(i) Neither the Company not any of its affiliates has, either prior to the initial filing or the effect date of the Registration Statement, made any offer or sale of any securities which are required to be “integrated” pursuant to the Securities Act or the regulations thereunder with the offer and sale of the Shares pursuant to the Registration Statement.
(j) The Company’s registration of the Common Stock under the provisions of Section 12(b) or (g), as applicable, of the Securities Exchange Act of 1934 on or prior to the effective date of the offering.
(k) The Company obtaining and maintaining a qualified Chief Financial Officer.
(l) The Company retaining a firm of independent certificate public accountants acceptable to Grandview.
(m) The Company retaining a financial printer reasonably acceptable to Grandview.
(n) The Company retaining a transfer agent for the Company’s Common Stock reasonably acceptable to Grandview.
(o) The Company engaging a financial public relations firm reasonably acceptable to Grandview.
(p) The Company registering with the Corporation Records Services published by Standard & Poor’s Corporation.
(q) Prior to the Initial Closing Date, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance satisfactory to Grandview, confirming that: (i) they are independent public accountants with respect to the Company within the meaning of the Securities Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than five days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by Grandview, or any increases in any items specified by Grandview, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in Clause (A), there were any decreases in revenues or the total or per share amounts of net income or other items specified by Grandview, or any increases in any items specified by Grandview, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by Grandview, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by Grandview, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement. (r) At the Initial Closing and at any Subsequent ClosingDate, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Grandview to the effect that each signer has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure MaterialsProspectus, and that to each of such person’s knowledge:
i. (i) (A) As of the date of each such certificate, (x) the Offering Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (y) the Prospectus does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii. Each of ) All the representations and warranties of the Company contained in this Agreement werethat are qualified as to materiality or Material Adverse Effect shall have been on the date hereof and shall be as of the Initial Closing Date, when originally made, as if made on and are, at as of the time such certificate is deliveredInitial Closing Date, true and correct complete in all respects for those respects, and all the representations and warranties of the Company contained in this Agreement that are not qualified by as to materiality or Material Adverse Effect shall have been true and complete in all material respects for those representations on the date hereof and warranties shall be true and complete in all material respects as of the Initial Closing Date, provided, however, that are not qualified by materialityany representation or warranty of the Company in this Agreement made only as of some date other than the date hereof shall have been true and complete only as of such other date.
(iii. ) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv. To their knowledge, no ) No stop order or other order suspending the qualification effectiveness of the Offering Statement Registration Statement, or any part thereof, or the qualification or registration of the Shares under the securities or Blue Sky laws of any part thereof jurisdiction, has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. (v) Any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities.
(vi) Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering CircularProspectus, there has been no Material Adverse Change.
(g) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (Green Solutions China, Inc.)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 and Rule 430A of the representations Rules and warranties on Regulations shall have been made within the part of the Company set forth in Section 3, as of the date hereof time period required by such Rules and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:Regulations.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters did Representatives do not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii)) of this paragraph.
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding, in the reasonable judgment of the Underwriters, would reasonably be expected to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriters.
(f) At the Initial Closing and at any Subsequent Closing, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters to the effect that each signer has carefully examined the Offering Statement, the Final Offering Circular and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
i. As of the date of each such certificate, (x) the Offering Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.
ii. Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
iii. Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.
(g) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 and Rule 430A of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then Regulations shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters did Representatives do not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Prospectus, and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentatives, would reasonably be expected to have a Material Adverse Effectmaterially and adversely affect the business, properties, business prospects, condition (financial or otherwise) or results of operations of the Company.
(de) Each of the representations and warranties of the Company and the Selling Shareholders contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, as if made on such datewith respect to the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company or the Selling Shareholders and all conditions contained herein contained to be fulfilled or complied with by the Company or the Selling Shareholders at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) At the Initial Closing and at any Subsequent Closing, there The Representatives shall be furnished to the Underwriters a certificatehave received an opinion, dated the date of its deliveryClosing Date and, signed by each of with respect to the President and Option Shares, the Chief Financial Officer of the CompanyOption Closing Date, in their capacities as officers of the Company, satisfactory in form and substance satisfactory to the Representatives and counsel for the Underwriters from Xxxxxxxxxx & Xxxxx, P.A., counsel to the Company and the Selling Shareholders, with respect to the following matters:
(i) The Company is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; has full corporate power and authority to conduct all the activities conducted by it, to own or lease all the assets owed or leased by it and to conduct its business as described in the Registration Statement and Prospectus; and is duly licensed or qualified to do business and is in good standing as a foreign corporation in all jurisdictions in which the nature of the activities conducted by it or the character of the assets owned or leased by it makes such license or qualification necessary and where the failure to be licensed or qualified would have a material and adverse effect that each signer has carefully examined on the Offering Statementbusiness or financial condition of the Company.
(ii) All of the outstanding shares of capital stock of the Company (including the Selling Shareholder Option Shares) have been duly authorized, validly issued and are fully paid and nonassessable, to such counsel's knowledge, were issued pursuant to exemptions from the registration and qualification requirements of federal and applicable state securities laws, and were not issued in violation of or subject to any preemptive or, to such counsel's knowledge, similar rights;
(iii) The specimen certificate evidencing the Common Stock filed as an exhibit to the Registration Statement is in due and proper form under Minnesota law, the Final Offering Circular Shares to be sold by the Company hereunder have been duly authorized and, when issued and paid for as contemplated by this Agreement, will be validly issued, fully paid and nonassessable; and no preemptive or similar rights exist with respect to any of the Shares or the issue and sale thereof.
(iv) To such counsel's knowledge, the Company does not own or control, directly or indirectly, any shares of stock or any other equity or long-term debt securities of any corporation or have any equity interest in any corporation, firm, partnership, joint venture, association or other entity.
(v) The authorized and outstanding capital stock of the Company is as set forth in the Registration Statement and the Pricing Disclosure MaterialsProspectus in the column entitled "Actual" under the caption "Capitalization" (except for subsequent issuances, if any, pursuant to this Agreement or pursuant to reservations, agreements, employee benefit plans or the exercise of convertible securities, options or warrants referred to in the Prospectus). To such counsel's knowledge, except as disclosed in or specifically contemplated by the Prospectus, there are no outstanding options, warrants of other rights calling for the issuance of, and that no commitments, plans or arrangements to each issue, any shares of such person’s knowledge:
i. As capital stock of the date Company or any security convertible into or exchangeable or exercisable for capital stock of each the Company. The description of the capital stock of the Company in the Registration Statement and the Prospectus conforms in all material respects to the terms thereof.
(vi) To such certificatecounsel's knowledge, there are no legal or governmental proceedings pending or threatened to which the Company is a party or to which any of its properties is subject that are required to be described in the Registration Statement or the Prospectus but are not so described.
(vii) No consent, approval, authorization or order of, or any filing or declaration with, any court or governmental agency or body is required for the consummation by the Company of the transactions on its part contemplated under this Agreement, except such as have been obtained or made under the Act or the Rules and Regulations and such as may be required under state securities or Blue Sky laws or the by-laws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Shares.
(viii) The Company has full corporate power and authority to enter into this Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(ix) The execution and delivery of this Agreement, the compliance by the Company with all of the terms hereof and the consummation of the transactions contemplated hereby does not contravene any provision of applicable law or the Articles of Incorporation or by-laws of the Company [or any of its Subsidiaries], and to such counsel's knowledge will not result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company pursuant to the terms and provisions of, result in a breach or violation of any of the terms or provisions of, or constitute a default under, or give any party a right to terminate any of its obligations under, or result in the acceleration of any obligation under, any indenture, mortgage, deed of trust, voting trust agreement, loan agreement, bond, debenture, note agreement or other evidence of indebtedness, lease, contract or other agreement or instrument known to such counsel to which the Company is a party or by which the Company or any of its properties is bound or affected, or violate or conflict with (i) any judgment, ruling, decree or order known to such counsel or (ii) any statute, rule or regulation of any court or other governmental agency or body, applicable to the business or properties of the Company.
(x) the Offering Statement does not contain any untrue statement To such counsel's knowledge, there is no document or contract of a material fact or omit to state a material fact character required to be stated described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required, and each description of such contracts and documents that is contained in the Registration Statement and Prospectus fairly presents in all material respects the information required under the Act and the Rules and Regulations.
(xi) The statements under the captions "Risk Factors Provisions of our articles of incorporation, our by-laws and Minnesota law could discourage potential acquisition proposals and delay or prevent a change in control," "Management Benefit Plans," "Management Employment Contracts," "Certain Transactions," "Description of Capital Stock," and "Shares Eligible for Future Sale" in the Prospectus, insofar as the statements constitute a summary of documents referred to therein or necessary in order to make the statements therein not misleading matters of law, are accurate summaries and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereinfairly and correctly present, in light of all material respects, the circumstances under which they were madeinformation called for with respect to such documents and matters (provided, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.
ii. Each of the however, that such counsel may rely on representations and warranties of the Company with respect to the factual matters contained in this Agreement were, when originally madesuch statements, and are, at provided further that such counsel shall state that nothing has come to the time attention of such certificate is delivered, counsel which leads them to believe that such representations are not true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityrespects).
iii. Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.
(g) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding proceedings for such purpose shall be pending before, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer or the President of the Company, Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been and no development shall have occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and the Subsidiary, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor the Subsidiary shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or the Subsidiary or any of its their respective officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of the Underwriters, would reasonably be expected to have Company and the Subsidiary taken as a Material Adverse Effectwhole.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(ef) On The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, satisfactory in form and substance to counsel for the Underwriters Underwriters, from Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, to the effect set forth in Exhibit C.
(g) The Representatives shall have received an opinion, dated the opinion Closing Date and, with respect to the Option Shares, the Option Closing Date, satisfactory in form and 10b-5 negative assurances letter substance to counsel for the Underwriters, from Xxxxxx Xxxxxx LLPXxxxx, WashingtonXxxxxxxx & Tannenwald, D.C.P.C., special United States regulatory counsel for the Company, addressed to the effect set forth in Exhibit D.
(h) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, from Shearman & Sterling, counsel to the Underwriters, dated as with respect to the Registration Statement, the Prospectus and this Agreement, which opinion will be satisfactory in all respects to the Representatives.
(i) On the date of the Prospectus, each of Ernst & Young LLP and Price Waterhouse LLP shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters, confirming that they are independent accountants with respect to the Company as required by the Act and the Rules and Regulations and containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial and other statistical and numerical information contained in the Registration Statement. At the Closing Date and, as to the Option Shares, the Option Closing Date, substantially Ernst & Young LLP shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with procedures set forth in the form satisfactory letter from such firm, that nothing has come to their attention during the period from the date of the letter referred to in the preceding sentence to the Underwritersdate (specified in the letter) not more than three business days prior to the Closing Date and the Option Closing Date which would require any change in the letter delivered on the date of Prospectus, if it were required to be dated and delivered on the Closing Date and the Option Closing Date.
(fj) At the Initial Closing and at any Subsequent ClosingDate and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a Representatives an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither since the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereinEffective Date, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.;
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.respects;
(iii. ) Each of the covenants required herein to be performed by the Company on or prior to the date delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery date of such certificate has been duly, timely and fully complied with.; and
(iv. To their knowledge) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) there has not been, and no stop order suspending development has occurred which could reasonably be expected to result in, a material adverse change in the qualification general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Offering Statement Company and the Subsidiary, taken as a whole, whether or not arising from transactions in the ordinary course of any part thereof has been issued and no proceedings for that purpose have been instituted business, in each case other than as set forth in or are contemplated by the Commission.
v. Subsequent to Registration Statement and the date of Prospectus and (B) neither the most recent financial statements Company nor the Subsidiary has sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Offering Registration Statement and in the Final Offering CircularProspectus, there has been no Material Adverse Changeand such other matters as the Representatives may reasonably request.
(gk) On or prior to the Closing Date, the Representatives shall have received the executed agreements referred to in Section 4(n).
(l) The "lock-up" agreements in the form set forth in Exhibit B-2 between you and certain stockholders, officers and directors of the Company relating to sales, directly or indirectly, of shares of Class B convertible preferred stock (the "Preferred Stock") issued by the Company pursuant to a private placement completed in December 1996, or any securities convertible into or exchangeable for such Preferred Stock, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(m) The Shares shall be qualified for sale in such states as the Representatives may reasonably request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date.
(n) Prior to the Closing Date, the Shares shall have been approved for quotation on the Nasdaq National Market upon official notice of issuance.
(o) The National Association of Securities Dealers, Inc. shall have approved the underwriting terms and arrangements and such approval shall not have been withdrawn or limited.
(p) The Company shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus, as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentatives.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are the Underwriters to purchase and pay for the Notes shall be subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(ia) No At the time of closing, the Indenture shall be qualified under the Trust Indenture Act, the Prospectus shall have been filed or delivered for filing to the Commission not later than 5:00 p.m. on the second business day following the date hereof, no stop order suspending the qualification effectiveness of the Offering Statement Registration Statement, as amended from time to time, shall have been issued, be in effect and no proceedings for that purpose shall be pending before or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending and the qualification Representative shall have received a certificate dated the day of the Offering Statement closing and signed by the President, a Vice President or the qualification or exemption Treasurer of each of the Shares under Company and Newcourt to the securities or Blue Sky laws of any jurisdiction shall be effect that no such stop order is in effect and, to the knowledge of the Company and Newcourt, no proceeding proceedings for such purpose shall be are pending before, or threatened or contemplated by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Statement or the Final Offering Circular shall have been filed unless a copy thereof was first submitted to the Underwriters and the Underwriters did not object thereto in good faith, and the Underwriters shall have received certificates of the Company, dated as of each Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (ii) and (iii).
(b) Since At or prior to the respective dates as time of which information is given in the Offering Statementclosing, the Pricing Disclosure Materials Representative shall have received from counsel for the Company and Newcourt, an opinion, satisfactory to Xxxxxxx and Xxxxxx, to the Final Offering Circular, effect that --
(i) The Company has been duly incorporated and is validly existing and in good standing under the reasonable judgment laws of the Underwriters there shall State of Delaware and Newcourt has been duly incorporated and is validly existing and in good standing under the laws of the Province of Ontario, Canada; each of the Company and Newcourt is duly qualified to do business and in good standing as a foreign corporation in all jurisdictions in which its ownership or leasing of properties or the conduct of its businesses requires such qualification (except where the failure to so qualify or be in good standing would not have occurred a Material Adverse Change.Effect), and has all power and authority necessary to own its respective properties and conduct the businesses in which it is engaged, as described in the Prospectus;
(cii) Since The issue and sale of the respective dates as of which information is given in Notes by the Offering Statement, the Pricing Disclosure Materials Company and the Final Offering Circularcompliance by the Company with all the provisions of this Agreement, there shall have been no litigation and the Indenture, and the consummation of the transactions contemplated hereby and thereby will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other proceeding instituted against agreement or instrument known to such counsel to which the Company or any of its officers or directors in their capacities as such, before subsidiaries is a party or by which the Company or any federalof its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, state nor will such actions result in any violation of the provisions of the charter or local by-laws of the Company or foreign courtany of its subsidiaries or any statute or any order, commission, regulatory body, administrative rule or regulation known to such counsel of any court or governmental agency or other governmental bodybody having jurisdiction over the Company or any of its subsidiaries or any of their properties or assets (except for such conflicts, domestic or foreignbreaches, which litigation or proceeding, in the reasonable judgment of the Underwriters, violations and defaults as would reasonably be expected to not have a Material Adverse Effect.); and, except for the registration of the Notes under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and distribution of the Notes by the Underwriters, no consent, approval, authorization, qualification or order of, or filing or registration with, any such court or governmental agency or body is required for the execution and delivery by the Company of, compliance by the Company with the provisions of, or the consummation of the transactions contemplated by this Agreement, except to the extent that the effect of the failure to obtain such consent, approval, authorization, qualification or order or to make such filing or registration would not have a Material Adverse Effect or affect the enforceability of the Notes;
(diii) Each The issue of the representations Guarantee by Newcourt and warranties the compliance by Newcourt with all the provisions of this Agreement, the Guarantee and the Indenture, and the consummation of the transactions contemplated hereby and thereby will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which Newcourt or any of its subsidiaries is a party or by which Newcourt or any of its subsidiaries is bound or to which any of the property or assets of Newcourt or any of its subsidiaries is subject, nor will such actions result in any violation of the provisions of the charter or by-laws of Newcourt or any of its subsidiaries or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over Newcourt or any of its subsidiaries or any of their properties or assets (except for such conflicts, breaches, violations and defaults as would not have a Material Adverse Effect); and, except for the registration of the Notes and the Guarantee under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and distribution of the Notes by the Underwriters, no consent, approval, authorization, qualification or order of, or filing or registration with, any such court or governmental agency or body is required for the execution and delivery by Newcourt of, compliance by Newcourt with the provisions of, or the consummation of the transactions contemplated by this Agreement, except to the extent that the effect of the failure to obtain such consent, approval, authorization, qualification or order or to make such filing or registration would not have a Material Adverse Effect or affect the enforceability of the Guarantee;
(iv) The Indenture has been duly authorized, executed and delivered by the Company, Newcourt and the Trustee and duly qualified under the Trust Indenture Act and is a valid and binding agreement of the Company and Newcourt enforceable in accordance with its terms (except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equity principles);
(v) The Notes have been duly authorized by the Company and, when duly executed and authenticated as provided in the Indenture and delivered against payment therefor in accordance with this Agreement, will be duly and validly issued and outstanding, and will constitute valid and binding agreements of the Company enforceable in accordance with their terms (except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and subject to general equitable principles), and entitled to the benefits of the Indenture;
(vi) The Guarantee has been duly authorized, executed and delivered by Newcourt and is a valid and binding agreement of Newcourt enforceable in accordance with its terms (except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and subject to general equitable principles);
(vii) The Registration Statement has become effective under the Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission;
(viii) The statements made in the Prospectus under the captions "Description of the Debt Securities," "Description of the Guarantee" and "Plan of Distribution," insofar as such statements constitute summaries of the legal matters, documents or proceedings specifically referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein;
(ix) This Agreement has been duly authorized, executed and delivered by the Company and Newcourt;
(x) Except as to financial statements and schedules contained herein shall be true and correct therein, as of to which such counsel is not called upon to express any opinion or belief, (A) each Closing Date document or portion thereof incorporated by reference in all respects for those representations and warranties qualified by materiality and the Registration Statement complied when filed with the Commission as to form in all material respects for those representations with the requirements of the Exchange Act, together with the applicable instructions, rules and warranties that are not qualified by materialityregulations of the Commission thereunder, as if made on such date, and all covenants and agreements herein contained to be performed on the (B) each part of the Company and all conditions herein contained Registration Statement when it became effective complied as to be fulfilled or complied with by the Company at or prior to such Closing Date shall have been duly performed, fulfilled or complied with form in all material respects.
respects with the requirements of the Act and the applicable instructions, rules and regulations of the Commission thereunder, (eC) On the Closing DateRegistration Statement and the Prospectus, as amended or supplemented, if applicable, comply, and at the Underwriters shall have received date thereof complied, as to form in all material respects with the opinion requirements of the Act and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLPthe applicable instructions, Washingtonrules and regulations of the Commission thereunder, D.C.(D) the Registration Statement, counsel for the Company, addressed to the Underwriters, dated as of its effective date (or, if later, at the Closing Datetime of Newcourt's filing of an annual report in accordance with the Exchange Act), substantially in the form satisfactory to the Underwriters.
(f) At the Initial Closing and at any Subsequent Closing, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters to the effect that each signer has carefully examined the Offering Statement, the Final Offering Circular and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
i. As of the date of each such certificate, (x) the Offering Statement does did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading misleading, and (yE) neither the Final Offering Circular nor Prospectus, as of its date and as of the Pricing Disclosure Materials contains date of such opinion, did not or does not, as the case may be, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were or are made, not misleading misleading.
(c) At or prior to the time of closing, the Representative shall have received from Xxxxxxx and no event Xxxxxx an opinion to the effect specified in clauses (iv), (v), (vii), (viii), (ix) (solely, in each case, with respect to the Company), and (x) (B), (C) and (E) therein; provided however, with respect to clause (E) the opinion will not apply to any statistical or financial information contained in the Prospectus).
(d) At or prior to the time of closing, the Representative shall have received from Sidley & Austin, special tax counsel to the Company, an opinion that its opinions expressed or referred to under the caption "Material Federal Income Tax Consequences" in the Prospectus are confirmed as correct in all material respects.
(e) At each of the dates hereof and at or prior to the time of closing, the Representative shall have received an executed copy of a letter from Xxxxxx Xxxxxxxx LLP and an executed copy of a letter from Ernst & Young LLP, addressed to the Company or Newcourt, as applicable, and to the Representative, to the effect that (i) they are independent public accountants as required by the Act and the applicable published rules and regulations of the Commission thereunder; (ii) the audited financial statements contained or incorporated by reference in the Registration Statement, as amended or supplemented from time to time, comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the applicable published rules and regulations of the Commission thereunder; (iii) nothing has occurred come to their attention as a the result of specified procedures not constituting an audit that caused them to believe (A) that the unaudited financial statements, if any, contained in or incorporated by reference as aforesaid, do not so comply and are not fairly presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements contained as aforesaid, (B) that there was any change in the capital stock or long or intermediate term debt of the Company or Newcourt, or any decrease in net assets, from the date of the latest balance sheet which it is necessary contained in or incorporated by reference as aforesaid, to amend a date not more than five days prior to the date of such letter or supplement (C) that there were any decreases, as compared with the Final Offering Circular corresponding period in order the preceding year, in total revenues, income before interest deductions or net income from the date of the latest figures for such items contained in the Registration Statement to make the date of the latest available financial statements therein of the Company or Newcourt; and (iv) they have carried out specified procedures which have been agreed to by the Agents, with respect to certain information included in the Registration Statement (including with respect to any pro forma financial information), and, on the basis of such procedures, they have found such information to be in agreement with the general accounting records of the Company and Newcourt; provided that, with respect to any of the items specified in clause (iii), such letter may contain an exception for matters which the Registration Statement discloses have occurred or may occur; and provided, further, that the letter may vary from the requirements specified in this subparagraph in such manner as the Representative in its sole discretion may determine to be immaterial or in such manner as may be acceptable to the Representative.
(f) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not untrue or misleading in have been, at the time of closing, any material respect.
ii. Each adverse change in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company or Newcourt and their respective subsidiaries, otherwise than as set forth or contemplated in the Registration Statement and the Prospectus; the representations and warranties of the Company and Newcourt herein shall be true at the time of closing; neither the Company nor Newcourt shall have failed, at or prior to the time of closing, to have performed all agreements herein contained in this Agreement were, when originally made, which should have been performed by it at or prior to such time; and arethe Representative shall have received, at the time such of closing, a certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
iii. Each to the foregoing effect dated the day of the covenants required herein to be performed closing and signed by the Company on President, a Vice President or prior to the date Treasurer of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by of the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse ChangeNewcourt.
(g) The Company Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement occurred in the Offering Statement, rating accorded the Preliminary Offering Circular, the Pricing Disclosure Materials Company's or the Final Offering Circular, Newcourt's debt securities by any "nationally recognized statistical rating organization," as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance that term is defined by the Company Commission for purposes of Rule 436(g) (2) under the Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its obligations hereunder, rating of either the Company's or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersNewcourt's debt securities.
(h) On or prior Prior to the date hereoftime of closing, each of the Company and Newcourt shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officersRepresentative such further information, directors, certificates and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions documents as the Underwriters Representative may reasonably request, . In case any of the conditions specified above in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA this Section 8 shall not have raised any objection with respect been fulfilled, this Agreement may be terminated by the Representative by delivering written notice of termination to the fairness or reasonableness Company. Any such termination shall be without liability of any party to any other party except to the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation extent provided in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or subparagraphs (d) the occurrence and (g) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering CircularSection 7 hereof.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened by the Commission or contemplated by, the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters did Representative does not object thereto in good faith, and (v) the Underwriters Representative shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the applicable Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (iii) and (iii).
(bii) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentative, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option Shares, at the applicable Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representative shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters from Dechert LLP, counsel to the Company.
(g) The Representative shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters from Xxxxx & Xxxxxx LLP, Nevada counsel to the Company.
(h) The Representative shall have received an opinion, dated the Closing Date or the applicable Option Closing Date, as the case may be, from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representative.
(i) Concurrently with the execution and delivery of this Agreement, each of the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, addressed to the Representative and in form and substance satisfactory to the Representative, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Initial Closing Date and, as to the Option Shares, the applicable Option Closing Date, each of the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in each of these letters from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at any Subsequent Closingthe Closing Date or the applicable Option Closing Date, as the case may be.
(j) At the Closing Date and, as to the Option Shares, the applicable Option Closing Date, there shall be furnished to the Underwriters Representative a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representative, to the effect that each signer has carefully examined the Offering Statement, the Final Offering Circular and the Pricing Disclosure Materials, and that to each of such person’s knowledgethat:
i. As of (i) For the period from and including the date of each this Agreement through and including such certificatedate, (x) the Offering Statement does there has not contain occurred any untrue statement of event which would reasonably be expected to have a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respectMaterial Adverse Effect.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gk) On or prior to the Closing Date, the Representative shall have received the executed agreements referred to in Section 4(n).
(l) If applicable, the Shares shall be qualified for sale in such jurisdictions as the Representative may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the applicable Option Closing Date.
(m) Prior to the Closing Date, the Shares shall have been duly authorized for listing on the NGM upon official notice of issuance.
(n) The Company shall have furnished or caused to be furnished to the Underwriters Representative such certificates, in addition to those specifically mentioned herein, as the Underwriters Representative may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the applicable Option Closing Date of any statement in the Offering Registration Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Prospectus or the Final Offering CircularGeneral Disclosure Package, as to the accuracy on such at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentative.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters did Representatives do not object thereto in good faith, and (v) the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the Option Closing Date and signed by the President and Chief Executive Officer and the Vice President of Finance of the CompanyCompany (who may, as to proceedings threatened, rely upon their information and the Chief Financial Officer of the Companybelief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentatives, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representatives, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, as if made on such datewith respect to the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, in form and substance previously agreed to by the Representatives and counsel for the Underwriters from Xxxxxxx Procter LLP, counsel to the Company.
(g) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, in form and substance previously agreed to by the Representatives and counsel for the Underwriters from Xxxxxxxx Xxxxxxxx LLP, intellectual property counsel to the Company.
(h) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from Xxxxxx, Hall & Xxxxxxx LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives.
(i) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date and the Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at any Subsequent Closingthe Closing Date and the Option Closing Date.
(j) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters Representatives a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer Vice President of the Company, in their capacities as officers Finance of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither since the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any representation and warranties that are not qualified by materialitywarranty without any materiality or Material Adverse Effect qualification).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gk) On or prior to the Closing Date, the Representatives shall have received the executed agreements referred to in Section 4(n).
(l) The Shares shall be qualified for sale in such jurisdictions as the Representatives may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the Option Closing Date.
(m) Prior to the Closing Date, the Shares shall have been duly authorized for listing on the NGM upon official notice of issuance.
(n) The Company shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus, as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentatives.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (La Jolla Pharmaceutical Co)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters did Representative does not object thereto in good faith, and (v) the Underwriters Representative shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentative, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, as if made on such datewith respect to the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Underwriters shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters from Bxxxxxx MxXxxxxxx LLP, counsel to the Company.
(g) The Underwriters shall have received an opinion, dated the Closing Date and the Option Closing Date, from Pillsbury Wxxxxxxx Xxxx Xxxxxxx LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representative.
(h) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery, addressed to the Underwriters and in form and substance satisfactory to the Underwriters, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at any Subsequent Closingthe Closing Date and the Option Closing Date.
(i) Concurrently with the execution and delivery of this Agreement, the Chief Financial Officer of the Company shall have furnished to the Underwriters a certificate, dated the date of its delivery, addressed to the Underwriters and in form and substance satisfactory to the Underwriters, with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Date and, as to the Option Shares, the Option Closing Date, the Chief Financial Officer of the Company shall have furnished to the Underwriters a certificate, dated the date of its delivery, addressed to the Underwriters and in form and substance satisfactory to the Underwriters, confirming the statements contained in the certificate delivered pursuant to the preceding sentence (with the confirmation regarding changes in certain financial information being as of a date not more than three days prior to the Closing Date or the Option Closing Date, as the case may be).
(j) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representative, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialitycorrect.
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gk) On or prior to the Closing Date, the Representative shall have received the executed agreements referred to in Section 4(n).
(l) The Shares shall be qualified for sale in such jurisdictions as the Representative may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the Option Closing Date.
(m) Prior to the Closing Date, the Shares shall have been duly authorized for listing on the NGM upon official notice of issuance.
(n) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus, as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (Lecroy Corp)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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 beforebefore or, or to the Company’s knowledge, threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters did Representative does not object thereto in good faith, and (v) the Underwriters Representative shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the applicable Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon their information and belief), to the effect of clauses (i), (ii) and (iii)) of this paragraph.
(b) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials and the Final Offering CircularProspectus, in the reasonable judgment of the Underwriters (i) there shall not have occurred been a Material Adverse Change.
(c) Since the respective dates as of which information is given material adverse change in the Offering Statementgeneral affairs, the Pricing Disclosure Materials and the Final Offering Circularbusiness, there shall have been no litigation business prospects, properties, management, condition (financial or other proceeding instituted against otherwise) or results of operations of the Company or any of its officers Subsidiaries, whether or directors not arising from transactions in their capacities the ordinary course of business, in each case other than as suchdescribed in or contemplated by the Registration Statement and the Pricing Prospectus, before and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any federal, state labor dispute or local any court or foreign court, commission, regulatory body, administrative agency legislative or other governmental bodyaction, domestic order or foreigndecree, which litigation or proceeding, is not described in the reasonable Registration Statement and the Pricing Prospectus, if in the judgment of the Underwriters, would reasonably be expected Representative any such development makes it impracticable or inadvisable to have a Material Adverse Effectconsummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(dc) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option Shares, at the applicable Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with.
(d) The Representative shall have received an opinion and a negative assurance letter, dated the Closing Date and, with respect to the Option Shares, at or prior to the applicable Option Closing Date, satisfactory in all material respectsform and substance to the Representative and counsel for the Underwriters from Dxxxx Xxxx & Wxxxxxxx LLP, counsel to the Company.
(e) On The Representative shall have received an opinion and negative assurance letter, dated the Closing Date or the applicable Option Closing Date, as the Underwriters shall have received the opinion and 10b-5 negative assurances letter case may be, from Xxxxxx Xxxxxx Pillsbury Wxxxxxxx Xxxx Xxxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory with respect to the UnderwritersRegistration Statement, the Prospectus and this Agreement, which opinion and negative assurance letter shall be satisfactory in all respects to the Representative.
(f) Concurrently with the execution and delivery of this Agreement, the Accountant shall have furnished to the Representative a letter, dated the date of its delivery, addressed to the Representative and in form and substance satisfactory to the Representative, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Initial Closing Date and, as to the Option Shares, the applicable Option Closing Date, the Accountant shall have furnished to the Representative a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountant, that nothing has come to its attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at any Subsequent Closingthe Closing Date or the applicable Option Closing Date, as the case may be.
(g) At the Closing Date and, as to the Option Shares, the applicable Option Closing Date, there shall be furnished to the Underwriters Representative a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Companysuch, in form and substance satisfactory to the Underwriters Representative, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the applicable Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gh) On or prior to the Closing Date, the Representative shall have received the executed agreements referred to in Section 4(n).
(i) Prior to the Closing Date, the Company shall have filed a notice of listing of additional shares with respect to the Shares with the NGSM and the NGSM shall not have objected to such listing.
(j) The Company shall have furnished or caused to be furnished to the Underwriters Representative such certificatesfurther certificates and documents, in addition to those specifically mentioned herein, as the Underwriters Representative may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwritersrequested.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (Ultra Clean Holdings, Inc.)
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Directors of the Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been, and no development shall have occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and its Subsidiary, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor its Subsidiary shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or its Subsidiary or any of its their respective officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of the Underwriters, would reasonably be expected to have Company and its Subsidiary taken as a Material Adverse Effectwhole.
(de) Each of the representations and warranties of the Company and the Selling Shareholders contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations at the Closing Date, and warranties that are not qualified by materialitywith respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and the Selling Shareholders and all conditions herein contained to be fulfilled or complied with by the Company and the Selling Shareholders at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) At the Initial Closing and at any Subsequent Closing, there The Representatives shall be furnished to the Underwriters a certificatehave received an opinion, dated the date of its deliveryClosing Date and, signed by each of with respect to the President Option Shares, the Option Closing Date, and the Chief Financial Officer of the Company, in their capacities as officers of the Company, satisfactory in form and substance satisfactory to counsel for the Underwriters, from Portxx & Xedgxx, X.L.P., counsel to the Underwriters Company, to the effect that each signer has carefully examined the Offering Statement, the Final Offering Circular and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
i. As of the date of each such certificate, (x) the Offering Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary set forth in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.
ii. Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
iii. Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.Exhibit D.
(g) The Company Representatives shall have furnished or caused to be furnished received an opinion with respect to the Underwriters such certificatesOption Shares, dated the Option Closing Date, and satisfactory in addition form and substance to those specifically mentioned hereincounsel for the Underwriters, as the Underwriters may have reasonably requested as from Portxx & Xedgxx X.X.P., counsel to the accuracy and completeness on any Closing Date and of any statement in the Offering StatementSelling Shareholders, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.effect set forth in Exhibit E.
(h) On or prior to the date hereof, the Company The Representatives shall have furnished to the Underwriters received an agreement substantially in the form of Exhibit B hereto from each of the Company’s officersopinion, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At dated the Closing Date and at any Subsequent Closingthe Option Closing Date, the Accountants shall have furnished from Shearman & Sterling, counsel to the Underwriters a letterUnderwriters, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.respect
Appears in 1 contract
Samples: Underwriting Agreement (Texas Biotechnology Corp /De/)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters did Representative do not object thereto in good faith, and (v) the Underwriters Representative shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the applicable Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Pricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the Offering CircularPrice.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentative, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the Offering Price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option Shares, at the applicable Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(ef) On The Representative shall have received an opinion and negative assurance letter, dated the Closing Date or the applicable Option Closing Date, as the Underwriters shall have received the opinion and 10b-5 negative assurances letter case may be, from Xxxxxx Xxxxxx Xxxxx & XxXxxxxx LLP, Washington, D.C., special securities counsel for to the Company, addressed with respect to the UnderwritersRegistration Statement, dated as of the Closing DateProspectus and this Agreement, substantially which opinion and negative assurance letter shall be satisfactory in all respects to the form satisfactory to Representative and counsel for the Underwriters.
(fg) The Representative shall have received an opinion, dated the Closing Date or the applicable Option Closing Date, as the case may be, from Stoel Rives LLP, Oregon counsel to the Company (regarding, e.g., the validity of the securities offered and such other customary opinions as local counsel to the Company (which Xxxxx & XxXxxxxx LLP is unable to give)), which opinion letter shall be satisfactory in all respects to the Representative.
(h) The Representative shall have received an opinion and negative assurance letter, dated the Closing Date or the applicable Option Closing Date, as the case may be, from Xxxxx Peabody LLP, counsel to the Underwriters, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(i) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, addressed to the Representative and in form and substance satisfactory to the Representative, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Closing Date and, as to the Option Shares, the applicable Option Closing Date, the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date or the applicable Option Closing Date, as the case may be.
(j) At the Initial Closing and at any Subsequent ClosingDate and, as to the Option Shares, the applicable Option Closing Date, there shall be furnished to the Underwriters Representative a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representative, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the applicable Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gk) On or prior to the Closing Date, the Representative shall have received the executed agreements referred to in Section 4(n).
(l) If applicable, the Shares shall be qualified for sale in such jurisdictions as the Representative may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the applicable Option Closing Date.
(m) Prior to the Closing Date, a notification of listing of additional shares with respect to the Shares shall have been duly filed with NASDAQ and NASDAQ shall not have provided any comments to such notification of listing of additional shares.
(n) If applicable, FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(o) The Representative shall have received an executed Lock-up Agreement from each of the executive officers and directors of the Company listed in Schedule B to this Agreement.
(p) Prior to the Closing Date, the Company shall have furnished to the Representative a good standing certificate of the Company, and any material subsidiaries, as the Representative shall have reasonably requested.
(q) The Company shall have furnished or caused to be furnished to the Underwriters Representative such certificates, in addition to those specifically mentioned herein, as the Underwriters Representative may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the applicable Option Closing Date of any statement in the Offering Registration Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Prospectus or the Final Offering CircularGeneral Disclosure Package, as to the accuracy on such at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentative.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Directors of the Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been a material adverse change or development involving a prospective material adverse change, in the general affairs, business, business prospects, earnings, position, value, properties, management, condition (financial or otherwise), operations or results of operations of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus, (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price, (iii) there shall have been no transactions, not in the ordinary course of business, entered into by the Company or any of its Subsidiaries and no liabilities or obligations incurred by the Company or any of its Subsidiaries, in each case from the latest date as of which the financial condition of the Company and its Subsidiaries is set forth in the Registration Statement and the Prospectus, which are materially adverse to the Company and its Subsidiaries, taken as a whole, (iv) neither the Company nor any of its Subsidiaries shall have issued any securities (other than the Securities) or declared or paid any dividend or made any distribution in respect of its capital stock of any class, debt (long term or short term) or, except in the ordinary course of business, liabilities or obligations of the Company or any of its Subsidiaries (contingent or otherwise), except as set forth in the Registration Statement and Prospectus and (v) no material amount of the assets of the Company or any of its Subsidiaries shall have been pledged, mortgaged or otherwise encumbered, except as set forth in the Registration Statement and Prospectus.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its Subsidiaries or any of their respective officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment general affairs, business, business prospects, earnings, position, value, properties, management, condition (financial or otherwise), operations or results of operations, of the Underwriters, would reasonably be expected to have Company and its Subsidiaries taken as a Material Adverse Effectwhole.
(de) Each of the representations and warranties of the Company, the Selling Stockholders and Spiex xxxtained herein shall be true and correct in all material respects at the Closing Date and, with respect to the Option Shares, the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Company and the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of by the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the covenants, agreements and conditions relating to the Company in connection with the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(ef) The Representatives and, with respect to the Firm Shares, the Selling Stockholders, shall have received opinions, each dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, satisfactory in form and substance to counsel for the Underwriters and the Selling Stockholders, as the case may be, from Rogexx & Xardxx, xxunsel to the Company, to the effect set forth in Exhibit E and from Fried, Frank, Harris, Shrixxx & Xacoxxxx, xxunsel to the Selling Stockholders, to the effect set forth in Exhibit F.
(g) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from Kaye, Xxholer, Fierman, Hays & Xandler, LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives.
(h) On the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement or incorporated by reference therein. At the Closing Date and, as to the Option Shares, the Option Closing Date, the Underwriters Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at the Closing Date and the Option Closing Date. The Selling Stockholders shall have received the opinion and 10b-5 negative assurances an "agreed upon procedures" letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company's independent public accountants in customary form and covering such matters of the type customarily covered by such letters in connection with public offerings of securities as the Selling Stockholders shall reasonably request, dated within five days of the date of effectiveness or supplements, as the case may be, addressed to the Underwriters, dated Selling Stockholders and with an appropriate bring down as of the Closing Date, substantially in the form satisfactory to the Underwriters.
(fi) At the Initial Closing and at any Subsequent ClosingDate and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a Representatives an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure MaterialsProspectus (including any uments filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus), and that to each of such person’s knowledge:
i. As (A) as of the date of each such certificate, (x) the Offering Statement does such uments are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) since the Effective Date, no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect, and there has been no ument required to be filed under the Exchange Act and the Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the Prospectus that has not been so filed.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityrespects.
(iii. ) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge(j) At the Closing Date, no stop order suspending there shall have been furnished to the qualification Representatives and the Company, as applicable, an accurate certificate, dated the date of its delivery, signed by Spiex xx behalf of the Offering Statement Selling Stockholders, in form and substance satisfactory to the Representatives, to the effect that the representations and warranties of the Selling Stockholders and Spiex xxxtained herein are true and correct in all material respects on and as of the date of such certificate as if made on and as of the date of such certificate, and each of the covenants and conditions required herein to be performed or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated complied with by the Commission.
v. Subsequent Selling Stockholders and Spiex xx or prior to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there such certificate has been no Material Adverse Changeduly, timely and fully performed or complied with.
(gk) On or prior to the Closing Date, the Representatives shall have received the executed agreements referred to in Section 5(m).
(l) The Company Shares shall be qualified for sale in such states as the Representatives may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date.
(m) Prior to the Closing Date, the Shares shall have furnished or caused to be been duly authorized for listing by the Nasdaq National Market System upon official notice of issuance.
(n) The Company, the Selling Stockholders and Spiex xxxll have furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and, with respect to the Company and the Option Shares, the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus or any uments filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, as to the accuracy on such at the Closing Date and, with respect to the Company, the Option Closing Date of the representations and warranties of the Company Company, the Selling Stockholders and Spiex xxxein, as to the performance by the Company of its Company, the Selling Stockholders and Spiex xx their respective obligations hereunder, hereunder or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentatives.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (Powerhouse Technologies Inc /De)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters did Representative does not object thereto in good faith, and (v) the Underwriters Representative shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentative, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representative shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters from Xxxxxx Xxxxxxxx & Markiles, LLP, counsel to the Company.
(g) The Representative shall have received an opinion, dated the Closing Date or the Option Closing Date, as the case may be, from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representative.
(h) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, addressed to the Representative and in form and substance satisfactory to the Representative, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at any Subsequent Closingthe Closing Date or the Option Closing Date, as the case may be.
(i) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters Representative a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representative, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialitycorrect.
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gj) On or prior to the Closing Date, the Representative shall have received the executed agreements referred to in Section 4(n).
(k) The Shares shall be qualified for sale in such jurisdictions as the Representative may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the Option Closing Date.
(l) Prior to the Closing Date, the Shares shall have been duly authorized for listing on the NGM upon official notice of issuance.
(m) The Company shall have furnished or caused to be furnished to the Underwriters Representative such certificates, in addition to those specifically mentioned herein, as the Underwriters Representative may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Registration Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Prospectus or the Final Offering CircularGeneral Disclosure Package, as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentative.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (Vitesse Semiconductor Corp)
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective under the Act shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by PaineWebber Incorporated and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, faith and (v) the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Directors of the Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been been, and no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, development shall have occurred which litigation or proceeding, in the reasonable judgment of the Underwriters, would could reasonably be expected to have result in, a Material Adverse Effect.
material adverse change in the general affairs, business, business prospects, properties, management, condition (dfinancial or otherwise) Each or results of the representations and warranties operations of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are whether or not qualified by materiality, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriters.
(f) At the Initial Closing and at any Subsequent Closing, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters to the effect that each signer has carefully examined the Offering Statement, the Final Offering Circular and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
i. As of the date of each such certificate, (x) the Offering Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.
ii. Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
iii. Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.
(g) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.arising from
Appears in 1 contract
Samples: Underwriting Agreement (Credentials Services International Inc)
Conditions of the Obligations of the Underwriters. The respective obligations of each Underwriter hereunder are the Underwriters to purchase and pay for the Shares shall be subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by you not later than 5:30 p.m., Nashville, Tennessee time, on the date of this Agreement or at such later date and time as shall be consented to in writing by you and all filings required by Rule 424, Rule 430A, Rule 434 and Rule 462(b) of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then Regulations shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or or, to the knowledge of the Company, threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect effect, and no proceeding for such purpose shall be pending before, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and to the satisfaction of the Representatives, (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters you and the Underwriters you did not object thereto in good faith, (v) the NASD, upon review of the terms of the public offering of the Shares, shall not have objected to such offering, such terms or the Underwriters' participation in the same, and the Underwriters (vi) and you shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been a material adverse change, or any development involving a prospective material adverse change, in the general affairs, business, business prospects, properties, management, key personnel, condition (financial or otherwise) or results of operations of the Company, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in the Registration Statement and the Prospectus (or, in the case of a prospective change, other than as contemplated by the Registration Statement and the Prospectus) and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood, hurricane or other casualty or calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in your reasonable judgment any such development makes it inadvisable to consummate the sale and delivery of the Shares by you at the public offering price. Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of the Underwriters, would reasonably be expected to have a Material Adverse EffectCompany.
(d) All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement and the Prospectus, and the registration, authorization, issue, sale and delivery of the Shares, shall have been reasonably satisfactory to counsel to the Underwriters, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this Section 6(d).
(e) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) At the Initial Closing and at any Subsequent Closing, there The Underwriters shall be furnished to the Underwriters a certificatehave received an opinion, dated the date Closing Date and, with respect to the Option Shares, the Option Closing Date, satisfactory in form and substance to your counsel, from Bass, Berrx & Xims XXX, counsel to the Company, to the effect that:
(i) The Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Tennessee, with corporate power and authority to own its properties and conduct its business as described in the Prospectus. The Company is qualified to do business as a foreign corporation in good standing in all other jurisdictions, except where the failure to so qualify would not have a material adverse effect upon the Company.
(ii) As of the dates specified therein, the Company had authorized and issued capital stock as set forth under the caption "Capitalization" in the Prospectus.
(iii) The Shares delivered on such Closing Date have been duly authorized, validly issued and are fully paid and nonassessable and conform to the description thereof contained in the Prospectus.
(iv) The outstanding shares of Common Stock have been duly authorized and validly issued, are fully paid and nonassessable and conform to the description thereof contained in the Prospectus; and the shareholders of the Company have no preemptive or similar rights with respect to the Shares or the Common Stock. All offers and sales of the Company's securities during the past three years were at all relevant times duly registered or exempt from the registration requirements of the Act and were duly registered or the subject of an exemption from the registration requirements of applicable state securities or Blue Sky laws.
(v) There are no contracts, agreements or understandings known to such counsel between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Act.
(vi) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the issuance or sale of the Shares or the consummation of the other transactions contemplated by this Agreement, except such as have been obtained and made under the Act, the Exchange Act and such as may be required under state securities or Blue Sky laws.
(vii) The filing of the Registration Statement has been duly authorized by the Board of Directors of the Company. The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated, including the issuance and sale of the Shares and compliance with the provisions thereof, will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, (A) any statute, rule or regulation or, to the knowledge of such counsel, order of any governmental agency or body or any court having jurisdiction over the Company or any of its deliveryproperties, signed (B) any material obligation, agreement, covenant or condition contained in any agreement or instrument to the knowledge of such counsel to which the Company is a party or by each which the Company is bound or to which any of the President and properties of the Chief Financial Officer Company is subject, or (C) the Restated Charter, as amended, or the Bylaws of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters to the effect that each signer has carefully examined the Offering Statement, the Final Offering Circular and the Pricing Disclosure MaterialsCompany has full power and authority to authorize, issue and that to each of such person’s knowledge:sell the Firm Shares and the Company Option Shares as contemplated by this Agreement.
i. As (viii) The Registration Statement was declared effective under the Act as of the date and time specified in such opinion, the Prospectus either was filed with the Commission pursuant to the subparagraph of each Rule 424(b) specified in such certificate, (x) opinion on the Offering Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated date specified therein or necessary was included in order the Registration Statement (as the case may be), and, to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light best of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.
ii. Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
iii. Each of the covenants required herein to be performed by the Company on or prior to the date knowledge of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledgecounsel, no stop order suspending the qualification effectiveness of the Offering Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated by under the Commission.
v. Subsequent Act; the Registration Statement and the Prospectus, and each amendment or supplement thereto, as of their respective effective or issue dates, complied as to form in all material respects with the requirements of the Act and the Rules and Regulations (except that such counsel need express no opinion as to financial statements, schedules and other financial or statistical information included therein); the descriptions in the Registration Statement and Prospectus of the Restated Charter and Bylaws of the Company and of statutes, legal and governmental proceedings and contracts and other documents are accurate in all material respects and fairly present the information required to be shown; and such counsel does not know of any statutes or regulations or any pending or threatened legal or governmental proceedings, required to be described in the Prospectus which are not described as required nor of any contracts or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the date of the most recent financial statements in the Offering Registration Statement which are not described and in the Final Offering Circular, there has been filed as required; it being understood that such counsel need express no Material Adverse Change.
(g) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested opinion as to the accuracy and completeness on any Closing Date and of any statement financial statements, schedules or other financial or statistical data contained in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, Prospectus or as to the fulfillment section of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersProspectus entitled "Underwriting."
(hix) On or prior to the date hereofThis Agreement has been duly authorized, executed and delivered by the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, constitutes a valid and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing legally binding obligation of the Company and the Subsidiaries enforceable in their respective jurisdiction of organization and their good standing accordance with its terms, except (A) as foreign entities such enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance or similar laws now or hereafter in such other jurisdictions as the Underwriters may reasonably request, in each case in writing effect relating to creditors' rights or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.debtors' obligations generally;
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Directors of the Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been, and no development shall have occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its Subsidiaries or any of their respective officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of the Underwriters, would reasonably be expected to have Company and its Subsidiaries taken as a Material Adverse Effectwhole.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(ef) On The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, and satisfactory in form and substance to counsel for the Underwriters shall have received Underwriters, from (i) ____________________, counsel to the opinion Company, to the effect set forth in Exhibit C and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP(ii) __________, Washington, D.C., patent and regulatory counsel for the Company, addressed to the effect set forth in Exhibit D.
(g) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from _____________________, counsel to the Underwriters, dated as with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives.
(h) On the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement or incorporated by reference therein. At the Closing Date and, as to the Option Shares, the Option Closing Date, substantially the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the form satisfactory letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the UnderwritersClosing Date and the Option Closing Date which would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at the Closing Date and the Option Closing Date.
(fi) At the Initial Closing and at any Subsequent ClosingDate and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a Representatives an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus (including any documents filed under the Exchange Act and that deemed to each of such person’s knowledge:
i. As be incorporated by reference into the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither since the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereinEffective Date, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.respect and there has been no document required to be filed under the Exchange Act and the Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the Prospectus that has not been so filed;
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.respects;
(iii. ) Each of the covenants required herein to be performed by the Company on or prior to the date delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery date of such certificate has been duly, timely and fully complied with.; and
(iv. To their knowledge) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) there has not been, and no stop order suspending development has occurred which could reasonably be expected to result in, a material adverse change in the qualification general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Offering Statement Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of any part thereof has been issued and no proceedings for that purpose have been instituted business, in each case other than as set forth in or are contemplated by the Commission.
v. Subsequent to Registration Statement and the date Prospectus and (B) neither the Company nor any of the most recent financial statements its Subsidiaries has sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Offering Registration Statement and in the Final Offering CircularProspectus, there has been no Material Adverse Changeand such other matter as the Representatives may reasonably request.
(gj) On or prior to the Closing Date, the Representatives shall have received the executed agreements referred to in Section 4(n).
(k) The Shares shall be qualified for sale in such states as the Representatives may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date.
(l) Prior to the Closing Date, the Shares shall have been approved for quotation on the Nasdaq National Market.
(m) The National Association of Securities Dealers, Inc. shall have approved the underwriting terms and arrangements and such approval shall not have been withdrawn or limited.
(n) The Company shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentatives.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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 beforebefore or, or to the Company’s knowledge, threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters did Representatives do not object thereto in good faith, and (v) the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the applicable Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon their information and belief), to the effect of clauses (i), (ii) and (iii)) of this paragraph.
(b) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials and the Final Offering CircularProspectus, in the reasonable judgment of the Underwriters (i) there shall not have occurred been a Material Adverse Change.
(c) Since the respective dates as of which information is given material adverse change in the Offering Statementgeneral affairs, the Pricing Disclosure Materials and the Final Offering Circularbusiness, there shall have been no litigation business prospects, properties, management, condition (financial or other proceeding instituted against otherwise) or results of operations of the Company or any of its officers Subsidiaries, whether or directors not arising from transactions in their capacities the ordinary course of business, in each case other than as suchdescribed in or contemplated by the Registration Statement and the Pricing Prospectus, before and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any federal, state labor dispute or local any court or foreign court, commission, regulatory body, administrative agency legislative or other governmental bodyaction, domestic order or foreigndecree, which litigation or proceeding, is not described in the reasonable Registration Statement and the Pricing Prospectus, if in the judgment of the Underwriters, would reasonably be expected Representatives any such development makes it impracticable or inadvisable to have a Material Adverse Effectconsummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(dc) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option Shares, at the applicable Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with.
(d) The Representatives shall have received an opinion and a negative assurance letter, dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, satisfactory in all material respectsform and substance to the Representatives and counsel for the Underwriters from Xxxxx Xxxx & Xxxxxxxx LLP, counsel to the Company.
(e) On The representatives shall have received an opinion and negative assurance letter, dated the Closing Date or the applicable Option Closing Date, as the Underwriters shall have received the opinion and 10b-5 negative assurances letter case may be, from Xxxxxx Xxxxxx Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory with respect to the UnderwritersRegistration Statement, the Prospectus and this Agreement, which opinion and negative assurance letter shall be satisfactory in all respects to the Representatives.
(f) Concurrently with the execution and delivery of this Agreement, each the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Initial Closing Date and, as to the Option Shares, the applicable Option Closing Date, each of the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from such Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at any Subsequent Closingthe Closing Date or the applicable Option Closing Date, as the case may be.
(g) At the Closing Date and, as to the Option Shares, the applicable Option Closing Date, there shall be furnished to the Underwriters Representatives a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Companysuch, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the applicable Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gh) On or prior to the Closing Date, the Representatives shall have received the executed agreements referred to in Section 4(n).
(i) Prior to the Closing Date, the Company shall have filed a notice of listing of additional shares with respect to the Shares with the NGSM and the NGSM shall not have objected to such listing.
(j) The Company shall have furnished or caused to be furnished to the Underwriters Representatives such certificatesfurther certificates and documents, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwritersrequested.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (Ultra Clean Holdings, Inc.)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter the Underwriters hereunder are subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(a) The Prospectus shall have been filed as required by Section 3(a) and (i) No no stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption registration of the Shares Securities under the securities or Blue Sky blue sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters and the Underwriters did not object thereto in good faith, and the Underwriters shall have received certificates of the Company, dated as of each Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the reasonable Registration Statement and the Prospectus and (ii) neither the Company nor any of its subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Underwriters there shall not have occurred a Material Adverse Changeany such development makes it impracticable or inadvisable to consummate the sale and delivery of the Securities by the Underwriters and at the public offering price.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, there shall have been no litigation or other proceeding instituted against the Company or any of its subsidiaries or any of their respective officers or directors or trustees, as the case may be, in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding it is reasonably probable that an unfavorable ruling, in the reasonable judgment of the Underwriters, decision or finding would reasonably be expected to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company REIT contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date, as if made on such dateat the Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company REIT and all conditions contained herein contained to be fulfilled or complied with by the Company REIT at or prior to such the Closing Date Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(e) On Subsequent to the execution and delivery of this Underwriting Agreement and prior to the Closing Date, there shall not have occurred any downgrading in the rating accorded the Securities or any other debt securities of the Company by any Rating Agency nor shall any notice have been given to the Company of (i) any intended or potential downgrading by any Rating Agency in such securities, or (ii) any review or possible change by any Rating Agency that does not indicate a stable, positive or improving rating accorded such securities.
(f) The Underwriters shall have received one or more opinions, dated the opinion Closing Date and 10b-5 negative assurances letter satisfactory in form and substance to the Underwriters’ counsel, from Xxxxxx Xxxxxx Xxxxxxx Procter LLP, Washington, D.C., counsel for to the Company, addressed (i) to the Underwriterseffect set forth in Exhibit B and (ii) concerning the tax matters set forth below:
(i) Commencing with the REIT’s first taxable year ended December 31, 1994, the REIT has been organized in conformity with the requirements for qualification as a real estate investment trust under the Code, and the REIT’s method of operation, as described in the Prospectus and in company certificates delivered to such counsel, will enable it to continue to meet the requirements for qualification and taxation as a real estate investment trust under the Code; and
(ii) The statements in the Prospectus under the caption “Federal Income Tax Considerations and Consequences of Your Investment” as supplemented by the statements in the Prospectus Supplement under the caption “United States Federal Income Tax Consequences,” to the extent such information constitutes matters of law, summaries of legal matters, or legal conclusions, have been reviewed by such counsel and are accurate in all material respects as of the date of such opinion.
(g) The Underwriters shall have received an opinion, dated as of the Closing Date, substantially from O’Melveny & Xxxxx LLP, Underwriters’ counsel, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in the form satisfactory all respects to the Underwriters.
(fh) Concurrently with the execution and delivery of this Agreement, Deloitte & Touche LLP shall have furnished to the Underwriters a letter, dated the date of its delivery, addressed to the Underwriters and in form and substance satisfactory to the Underwriters, confirming that they are independent accountants with respect to the Company as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement or incorporated by reference therein. At the Closing Date, Deloitte & Touche LLP shall have furnished to the Underwriters a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from Deloitte & Touche LLP, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date.
(i) At the Initial Closing and at any Subsequent ClosingDate, there shall be furnished to the Underwriters a an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers each of (a) Gables GP on behalf of the CompanyOperating Partnership and (b) the REIT, in form and substance satisfactory to the Underwriters Underwriters, to the effect that each that:
(i) The Prospectus has been filed as required by Section 3(a) and no stop order suspending the effectiveness of the Registration Statement under the Act or the blue sky laws of any jurisdiction has been issued and, to the best of their knowledge, information and belief, no proceeding for such purpose is pending before or threatened or contemplated by the Commission or the authorities of any such jurisdiction.
(ii) Any request for additional information with respect to the Registration Statement on the part of the staff of the Commission or any such authorities has been complied with to the satisfaction of the staff of the Commission or such authorities.
(iii) Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus) and (A) believes that to each of such person’s knowledge:
i. As as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither the Final Offering Circular nor the Pricing Disclosure Materials contains does not know of any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and no event that has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectrespect and there has been no document required to be filed under the Exchange Act and the Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the Prospectus that has not been so filed.
ii. (iv) Each of the representations and warranties of the Company REIT contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityrespects.
iii. (v) Each of the covenants required herein to be performed by the Company REIT herein on or prior to the date delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company REIT on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending (vi) Since the qualification execution and delivery of the Offering Statement or of any part thereof has been issued Underwriting Agreement and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent prior to the date of the most recent financial statements in the Offering Statement and in the Final Offering CircularClosing Date, there has not occurred any downgrading in the rating accorded the REIT or the Securities or any debt securities of the Operating Partnership by any Rating Agency nor has any notice been no Material Adverse Changegiven to the Company of (A) any intended or potential downgrading by any Rating Agency in such securities, or (B) any review or possible change by any Rating Agency that does not indicate a stable, positive or improving rating accorded such securities.
(gj) The Securities shall be qualified for sale in such states as the Underwriters may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date.
(k) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, including, without limitation, one or more certificates of the Secretary of the REIT and the Secretary of Gables GP on behalf of the Operating Partnership, in addition to those otherwise specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any at the Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, as to the accuracy on such at the Closing Date of the representations and warranties of the Company REIT herein as to the performance by the Company REIT of its obligations hereunder, hereunder or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The respective obligations of each Underwriter hereunder are the several Underwriters to purchase and pay for the Securities will be subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3Province herein, as to the accuracy of the date hereof and as statements of the Closing Date as though then maderepresentatives of the Province made pursuant to the provisions hereof, (2) to the timely performance by the Company Province of its covenants obligations hereunder and obligations hereunder, with regard to the Securities and (3) each of to the following additional conditionsconditions precedent:
(ia) No Prior to the Closing Date, no stop order suspending the qualification effectiveness of the Offering Statement Registration Statement, as amended from time to time, shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (includinghave been instituted or, without limitation, to the Commission), (ii) no order suspending the qualification knowledge of the Offering Statement Province or the qualification or exemption of Representatives, shall be contemplated by the Shares SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending beforeSecurities Act, or threatened or contemplated by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Statement or the Final Offering Circular shall have been filed unless a copy thereof was first submitted with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement.
b) Subsequent to the Underwriters execution of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Underwriters did not object thereto in good faith, Final Prospectus; and the Underwriters shall have received certificates of received, on the CompanyClosing Date, a certificate dated as of each the Closing Date and signed by the President and Chief Executive Officer Minister of Finance of the CompanyProvince, and the Chief Financial Officer Deputy Minister of Finance of the CompanyProvince or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b).
c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Justice of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Justice of the Province or another officer of the Ministry of Justice of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of clauses British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type:
(i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities.
(ii) This Agreement and (iii)the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law.
(biii) Since The Securities, when duly executed, authenticated and delivered to and paid for by the respective dates as Underwriters in accordance with the provisions of which information is given in the Offering Statement, the Pricing Disclosure Materials this Agreement and the Final Offering CircularFiscal Agency Agreement, in the reasonable judgment will constitute valid, legally binding, direct and unconditional general obligations of the Underwriters there shall not have occurred a Material Adverse ChangeProvince in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities.
(civ) Since All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the respective dates as execution and delivery of which information is given in this Agreement and the Offering StatementFiscal Agency Agreement, the Pricing Disclosure Materials issuance of the Securities and the Final Offering Circular, there shall performance by the Province of its obligations hereunder and thereunder have been no litigation or other proceeding instituted against the Company or any of its officers or directors obtained and are in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding, in the reasonable judgment of the Underwriters, would reasonably be expected to have a Material Adverse Effectfull force and effect.
(dv) Each Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada.
(vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date documents referred to therein, are accurate in all respects for those representations material respects, subject to the qualifications therein stated.
(vii) The statements in the Time of Sale Information and warranties qualified by materiality Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects for those representations and warranties that are not qualified by materialitythe legal matters referred to therein.
d) The Underwriters shall have received an opinion of Farris, as if made on such dateVaughan, and all covenants and agreements herein contained Xxxxx & Xxxxxx LLP, Canadian counsel to be performed on the part Underwriters, given in respect of the Company laws of British Columbia and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such Closing Date shall have been duly performedCanada, fulfilled or complied with in all material respects.
(e) On dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Farris, Vaughan, Xxxxx & Xxxxxx LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Farris, Vaughan, Xxxxx & Xxxxxx LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Justice of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Justice of the Province or another officer of the Ministry of Justice of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon.
e) The Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx of Shearman & Sterling LLP, WashingtonUnited States counsel for the Province, D.C.dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that:
(i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities.
(ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein.
(iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, and “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein.
(iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the CompanyProvince and their examination of specified documents, addressed no facts have come to such counsel’s attention which caused such counsel to believe that (A) the UnderwritersRegistration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, dated as of the Closing Dateto which such counsel has not been requested to comment), substantially in the form satisfactory to the Underwriters.
(f) At the Initial Closing and at any Subsequent Closing, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters to the effect that each signer has carefully examined the Offering Statement, the Final Offering Circular and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
i. As of the date of each such certificatethis Agreement, (x) the Offering Statement does not contain any contained an untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading misleading; (B) the Time of Sale Information (other than the financial statements and (y) neither other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Final Offering Circular nor the Pricing Disclosure Materials contains any Time of Sale, contained an untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend misleading; or supplement (C) the Final Offering Circular Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not untrue or misleading been requested to comment) appear on their face to be appropriately responsive in any all material respectrespects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder.
iif) The Underwriters shall have received an opinion of Xxxxx Xxxx & Xxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. Each In considering such opinion, Xxxxx Xxxx & Xxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure.
g) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the Company contained Province in this Agreement were, when originally made, and are, at the time such certificate is delivered, are true and correct in correct, that the Province has complied with all respects for those representations agreements and warranties qualified by materiality and in satisfied all material respects for those representations and warranties that are not qualified by materiality.
iii. Each of the covenants required herein conditions on its part to be performed by the Company on or satisfied at or prior to the date of such certificate has been dulyClosing Date, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, that no stop order suspending the qualification effectiveness of the Offering Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the CommissionSEC.
v. Subsequent to the date h) The purchase and sale of the most recent financial statements Securities in accordance with the Offering Statement and in provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the Final Offering CircularUnited States of America, there has been no Material Adverse Changethe Province or the State of New York.
(gi) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company Province shall have furnished to the Underwriters an agreement substantially in and to counsel for the form Underwriters such further certificates and documents as the Representatives and such counsel reasonably request.
j) Subsequent to the execution of Exhibit B hereto from each of the Company’s officers, directors, this Agreement and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on prior to the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared Province by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services any nationally recognized statistical rating agency in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) the occurrence of any other calamity or crisis or any change . All such opinions, certificates, letters and documents will be in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed compliance with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters containing statements with such conformed copies of such opinions, certificates, letters and information documents as the Representatives reasonably request. If any of the type ordinarily included in accountants’ “comfort letters” to underwriters above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to the financial statements and certain financial information contained in the Offering StatementSecurities at, or at any time prior to, the Pricing Disclosure Materials Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and the Final Offering CircularSection 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.
Appears in 1 contract
Samples: Fiscal Agency Agreement (Province of British Columbia)
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by PaineWebber Incorporated and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, faith and (v) the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Directors of the Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect 16 the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of the Underwriters, would reasonably be expected to have a Material Adverse EffectCompany.
(de) Each of the representations and warranties of the Company and the Selling Stockholders contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and the Selling Stockholders and all conditions herein contained to be fulfilled or complied with by the Company and the Selling Stockholders at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, and satisfactory in form and substance to counsel for the Underwriters, from Maloxxx, Xxhlxxx & Xatz, xxunsel to the Company, to the effect set forth in Exhibit D.
(g) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, and satisfactory in form and substance to counsel for the Underwriters, from Pillsbury Madison & Sutro LLP, special securities counsel to the Company, to the effect set forth in Exhibit E.
(h) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, and satisfactory in form and substance to counsel for the Underwriters, from Websxxx, Xxamxxxxxxx & Xean, xxecial regulatory counsel to the Company, to the effect set forth in Exhibit F.
(i) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from Shearman & Sterling, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives.
(j) On the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date and at the Option Closing Date which would require any Subsequent Closingchange in their letter
(k) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a Representatives an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither since the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereinEffective Date, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityrespects.
(iii. ) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending (l) At the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.
(g) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular[and, as to the accuracy Option Shares, the Option Closing Date,] there shall have been furnished to the Representatives an accurate certificate, dated the date of its delivery, signed by the Committee on such Closing Date behalf of each of the Selling Stockholders, in form and substance satisfactory to the Representatives, to the effect that the representations and warranties of each of the Company Selling Stockholders contained herein are true and correct in all material respects on and as of the date of such certificate as if made on and as of the date of such certificate, and each of the covenants and conditions required herein to be performed or complied with by the Selling Stockholders on or prior to the performance by the Company date of its obligations hereundersuch certificate has been duly, timely and fully performed or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriterscomplied with.
(hm) On or prior to the date hereofClosing Date, the Company Representatives shall have furnished received the executed agreements referred to in Section 5(n).
(n) The Shares shall be qualified for sale in such states as the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, Representatives may reasonably request and each such agreement qualification shall be in full force effect and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused not subject to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, stop order or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally proceeding on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closingthe Option Closing Date. 18 (o) Prior to the Closing Date, the Accountants Shares shall have furnished to been duly authorized for listing by the Underwriters a letter, dated the date NNM upon official notice of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circularissuance.
Appears in 1 contract
Samples: Underwriting Agreement (Credentials Services International Inc)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter the Underwriters hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430B of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Eastern time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters did Representatives do not object thereto in good faith, and (v) the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii) of this paragraph (such certificate shall also include the matters set forth in Section 6(i) below).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise), stockholders’ equity or results of operations of the Company and its Subsidiaries (taken as a whole), whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) the Company and its Subsidiaries (taken as a whole) shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or agency, other governmental body, domestic or foreign, or arbitrator, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentatives, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representatives, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any representation and warranties that are warranty not qualified by materialitycontaining a materiality or Material Adverse Effect qualification) at the Closing Date and, as if made on such datewith respect to the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(ef) On The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, reasonably satisfactory in form and substance to the Underwriters shall have received the opinion Representatives and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the CompanyUnderwriters from Xxxxx Day, addressed counsel to the Underwriters, dated as of the Closing DateCompany, substantially in the form agreed to as of the date hereof.
(g) The Underwriters shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, reasonably satisfactory in form and substance to the Representatives, from Winston & Xxxxxx LLP, counsel to the Underwriters, and the Company shall have furnished to such counsel such documents as such counsel reasonably requests for the enabling such counsel to pass on such matters.
(h) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representatives a letter, dated the date of this Agreement, addressed to the Representatives and in form and substance reasonably satisfactory to the UnderwritersRepresentatives, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement. At the Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date and the Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date and the Option Closing Date.
(fi) At the Initial Closing and at any Subsequent ClosingDate and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters Representatives a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance reasonably satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate (in his capacity as set forth above) has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the Pricing General Disclosure Materials, Package and that to each of such person’s knowledge:
i. As in their opinion (A) as of the date of each such certificate, (x) the Offering Statement does such documents do not contain any untrue statement of a material fact or and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading (in the case of the Prospectus and (y) neither the Final Offering Circular nor the Pricing General Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereinPackage, in light of the circumstances under which they such statements were made) not misleading, not misleading except, in the case of the General Disclosure Package, that the price of the Shares and the disclosures directly relating thereto are included on the cover page of the Prospectus, and (B) since the Effective Date, no event has occurred as that should have been set forth in a result of which it is necessary supplement or amendment to amend the Registration Statement or supplement the Final Offering Circular in order to make the statements therein Prospectus that has not untrue or misleading in any material respectbeen so set forth.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialitycorrect.
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied withsatisfied or fulfilled. Such certificate shall also include the matters set forth in Section 6(b) above.
iv. To their knowledge(j) On or prior to the Closing Date, no the Representatives shall have received the executed agreements referred to in
(k) The Shares shall be qualified for sale in such jurisdictions as the Representatives may reasonably request and each such qualification shall be in effect and not subject to any stop order suspending or other proceeding on the qualification of Closing Date or the Offering Statement or of any part thereof has been issued and no proceedings for that purpose Option Closing Date.
(l) Prior to the Closing Date, the Shares shall have been instituted or are contemplated by duly authorized for listing on the CommissionNGM upon official notice of issuance.
v. Subsequent (m) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Representatives a certificate, dated the date of its delivery, signed by the most recent financial statements Secretary of the Company certifying such matters as are customarily covered in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changesuch certificates.
(gn) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Representatives a certificate, dated the date of its delivery, signed by the Chief Financial Officer of the Company in the form agreed to by the Company and the Representatives.
(o) The Company shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus, as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (PMFG, Inc.)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are the several Underwriters to purchase and pay for the Firm Common Shares on the First Closing Date and the Optional Common Shares on the Second Closing Date shall be subject to (1) the accuracy of the representations and warranties on the part of the Company and the Parent herein set forth in Section 3, as of the date hereof and as of the First Closing Date or the Second Closing Date, as though then madethe case may be, (2) to the timely accuracy of the statements of Company officers and the Parent made pursuant to the provisions hereof, to the performance by the Company and the Parent of its covenants and their respective obligations hereunder, and (3) each of to the following additional conditions:
(ia) No The Registration Statement shall have become effective not later than 5:00 p.m.(or, in the case of a registration statement filed pursuant to Rule 462(b) of the Rules and Regulations relating to the Common Shares, not later than 10:00 p.m.), Washington, D.C. Time, on the date of this Agreement, or at such later time as shall have been consented to by you; if the filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b) of the Rules and Regulations, the Prospectus shall have been filed in the manner and within the time period required by Rule 424(b) of the Rules and Regulations; and prior to such Closing Date, no stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending have been instituted or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification of the Offering Statement or the qualification or exemption 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 beforeor, to the knowledge of the Company, the Parent or you, shall be contemplated by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement, or threatened or contemplated byotherwise, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to your satisfaction.
(b) You shall be satisfied that since the satisfaction respective dates as of which information is given in the Registration Statement and Prospectus, (i) except as disclosed in the Prospectus, there shall not have been any change in the capital stock or any material change in the indebtedness (other than in the ordinary course of business) of the staff of Company, (ii) except as set forth or contemplated by the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus, no material verbal or written agreement or other transaction shall have been filed unless a copy thereof was first submitted entered into by the Company, which is not in the ordinary course of business, (iii) no loss or damage (whether or not insured) to the property of the Company shall have been sustained which materially and adversely affects the condition
(c) There shall have been furnished to you on each Closing Date, in form and substance satisfactory to you, except as otherwise expressly provided below:
(i) An opinion of Brobxxx, Xxlexxx & Xarrxxxx, counsel for the Company and the Parent, addressed to the Underwriters and dated the First Closing Date or the Second Closing Date, as the case may be, in the form attached as Exhibit I hereto.
(ii) Such opinion or opinions of Wilsxx Xxxxxxx Xxxxxxxx & Xosaxx, X.C., counsel for the Underwriters did not object thereto in good faithdated the First Closing Date or the Second Closing Date, as the case may be, with respect to the incorporation of the Company, the sufficiency of all corporate proceedings and other legal matters relating to this Agreement, the validity of the Common Shares, the Registration Statement and the Prospectus and other related matters as you may reasonably require, and the Underwriters Company and the Parent shall have received furnished to such counsel such documents and shall have exhibited to them such papers and records as they may reasonably 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 and governmental officials.
(iii) A certificate of the Company executed by the Chairman of the Board or President and the chief financial or accounting officer of the Company, dated as of each the First Closing Date and signed by or the President and Chief Executive Officer of Second Closing Date, as the Company, and the Chief Financial Officer of the Companycase may be, to the effect of clauses (ii) and (iii).that:
(b1) The representations and warranties of the Company set forth in Section 2 of this Agreement are true and correct as of the date of this Agreement and as of the First Closing Date or the Second Closing Date, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied on or prior to such Closing Date;
(2) The Commission has not issued any order preventing or suspending the use of the Prospectus or any Preliminary Prospectus filed as a part of the Registration Statement or any amendment thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the best of the knowledge of the respective signers, no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(3) Each of the respective signers of the certificate has carefully examined the Registration Statement and the Prospectus; in his or her opinion and to the best of his or her knowledge, the Registration Statement and the Prospectus and any amendments or supplements thereto contain all statements required to be stated therein regarding the Company; and neither the Registration Statement nor the Prospectus nor any amendment or supplement thereto includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(4) Since the initial date on which the Registration Statement was filed, no agreement, written or oral, transaction or event has occurred which should have been set forth in an amendment to the Registration Statement or in a supplement to or amendment of any prospectus which has not been disclosed in such a supplement or amendment;
(5) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, and except as disclosed in the reasonable judgment of Prospectus, there has not been any material adverse change or a development involving a material adverse change in the Underwriters there shall not have occurred a Material Adverse Change.condition (financial or otherwise),
(c6) Since the respective dates as of which information is given in the Offering StatementRegistration Statement and the Prospectus, the Pricing Disclosure Materials and the Final Offering CircularCompany has not sustained a material loss or damage by strike, there shall have been no litigation fire, flood, windstorm, accident or other proceeding instituted against the Company calamity (whether or any of its officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding, in the reasonable judgment of the Underwriters, would reasonably be expected to have a Material Adverse Effectnot insured).
(div) Each A certificate of the Parent executed by the Chairman of the Board or President and the chief financial or accounting officer of the Parent, dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that:
(1) The representations and warranties of the Company contained herein shall be Parent set forth in Section 2 of this Agreement are true and correct as of each the date of this Agreement and as of the First Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityor the Second Closing Date, as if made on such datethe case may be, and the Company has complied with all covenants the agreements and agreements herein contained satisfied all the conditions on its part to be performed or satisfied on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such Closing Date shall Date;
(2) The Commission has not issued any order preventing or suspending the use of the Prospectus or any Preliminary Prospectus filed as a part of the Registration Statement or any amendment thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the best of the knowledge of the respective signers, no proceedings for that purpose have been duly performedinstituted or are pending or contemplated under the Act;
(3) Each of the respective signers of the certificate has carefully examined the Registration Statement and the Prospectus; in his or her opinion and to the best of his or her knowledge, fulfilled the Registration Statement and the Prospectus and any amendments or complied with supplements thereto contain all statements required to be stated therein regarding the Company; and neither the Registration Statement nor the Prospectus nor any amendment or supplement thereto includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(4) Since the initial date on which the Registration Statement was filed, no agreement, written or oral, transaction or event has occurred which should have been set forth in all an amendment to the Registration Statement or in a supplement to or amendment of any prospectus which has not been disclosed in such a supplement or amendment;
(5) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, and except as disclosed in the Prospectus, there has not been any material respectsadverse change or a development involving a material adverse change in the condition (financial or otherwise), business, properties, results of operations or management of the Company; and there has been no legal or governmental action, suit or proceeding is pending or, to such person's knowledge, threatened against the Company which is material to the Company, whether or not arising from transactions in the ordinary course of business, or which could reasonably be expected to adversely affect the transactions contemplated by this Agreement; since such dates the Company has not entered into any verbal or written agreement or other transaction which is not in the ordinary course of business or incurred any material liability or obligation, direct, contingent or indirect which is not in the ordinary course of business, made any change in its capital
(6) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, the Company has not sustained a material loss or damage by strike, fire, flood, windstorm, accident or other calamity (whether or not insured).
(ev) On the date before this Agreement is executed and also on the First Closing Date and the Second Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances a letter addressed to you from Xxxxxx Xxxxxx Ernst & Young LLP, Washingtonindependent accountants, D.C.the first one to be dated the day before the date of this Agreement, counsel for the Company, addressed second one to be dated the Underwriters, First Closing Date and the third one (in the event of a Second Closing) to be dated as of the Second Closing Date, substantially in the form and substance satisfactory to the Underwritersyou.
(fvi) At On or before the Initial First Closing Date, letters from the Parent and at any Subsequent Closing, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President director and the Chief Financial Officer of the Company, in their capacities as officers executive officer of the Company, in form and substance satisfactory to you, confirming that for a period of 180 days after the Underwriters first date that any of the Common Shares are released by you for sale to the effect that each signer has carefully examined public, such person or entity will not directly or indirectly sell or offer to sell or otherwise dispose of any shares of Common Stock or any right to acquire any such shares without the Offering Statementprior written consent of Montxxxxxx Xxxurities, which consent may be withheld at the Final Offering Circular sole discretion of Montxxxxxx Xxxurities. All such opinions, certificates, letters and documents shall be in compliance with the Pricing Disclosure Materialsprovisions hereof only if they are satisfactory to you and to Wilsxx Xxxxxxx Xxxxxxxx & Xosaxx, X.C., counsel for the Underwriters. The Company and that to each Parent shall furnish you with such manually signed or conformed copies of such person’s knowledge:
i. As of the date of each such certificateopinions, (x) the Offering Statement does not contain certificates, letters and documents as you request. Any certificate signed by any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.
ii. Each of the representations and warranties officer of the Company contained in this Agreement were, when originally made, or Parent (as the case may be) and are, at delivered to the time such certificate is delivered, true and correct in all respects Underwriters or to counsel for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
iii. Each of the covenants required herein Underwriters shall be deemed to be performed a representation and warranty by the Company on or prior to Parent (as the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.
(gcase may be) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on statements made therein. If any condition to the Underwriters' obligations hereunder to be satisfied prior to or at the First Closing Date and of any statement in the Offering Statementis not so satisfied, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as this Agreement at your election will terminate upon notification by you to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction Parent without liability on the part of organization any Underwriter or the Company or the Parent except for the expenses to be paid or reimbursed by the Company and their good standing as foreign entities in such other jurisdictions as by the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect Parent pursuant to Sections 7 and 9 hereof and except to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated herebyextent provided in Section 11 hereof.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Directors of the Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been, and no development shall have occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its Subsidiaries or any of their respective officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of the Underwriters, would reasonably be expected to have Company and its Subsidiaries taken as a Material Adverse Effectwhole.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, and satisfactory in form and substance to counsel for the Underwriters, from Xxxxxxxxx & Xxxxxxxxx, counsel to the Company, to the effect set forth in Exhibit D.
(g) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives.
(h) On the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at any Subsequent Closingthe Closing Date and the Option Closing Date.
(i) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a Representatives an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither since the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereinEffective Date, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.;
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.respects;
(iii. ) Each of the covenants required herein to be performed by the Company on or prior to the date delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery date of such certificate has been duly, timely and fully complied with.; and
(iv. To their knowledge) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) there has not been, and no stop order suspending development has occurred which could reasonably be expected to result in, a material adverse change in the qualification general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Offering Statement Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of any part thereof has been issued and no proceedings for that purpose have been instituted business, in each case other than as set forth in or are contemplated by the Commission.
v. Subsequent to Registration Statement and the date Prospectus and (B) neither the Company nor any of the most recent financial statements its Subsidiaries has sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Offering Registration Statement and in the Final Offering CircularProspectus, there has been no Material Adverse Changeand such other matters as the Representatives may reasonably request.
(gj) On or prior to the Closing Date, the Representatives shall have received the executed agreements referred to in Section 4(n).
(k) The Shares shall be qualified for sale in such states as the Representatives may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date.
(l) Prior to the Closing Date, the Shares shall have been duly authorized for listing by the New York Stock Exchange upon official notice of issuance.
(m) The National Association of Securities Dealers, Inc. shall have approved the underwriting terms and arrangements and such approval shall not have been withdrawn or limited.
(n) The Company shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering Circular, Prospectus as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentatives.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (Advanced Communications Group Inc/De/)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters did Representative does not object thereto in good faith, and (v) the Underwriters Representative shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentative, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) At the Initial Closing and at any Subsequent Closing, there The Representative shall be furnished to the Underwriters a certificatehave received an opinion, dated the date of its deliveryClosing Date and, signed by each of with respect to the President and Option Shares, the Chief Financial Officer of the CompanyOption Closing Date, in their capacities as officers of the Company, satisfactory in form and substance satisfactory to the Representative and U.S. counsel for the Underwriters from Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, counsel to the effect that each signer has carefully examined the Offering StatementCompany, the Final Offering Circular and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
i. As of the date of each such certificate, (x) the Offering Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.
ii. Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
iii. Each of the covenants required herein to be performed by the Company set forth on or prior Exhibit A. Such counsel shall also furnish to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.
(g) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) Representative a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”)negative assurance statement, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters containing statements and information of Representative.
(g) The Representative shall have received an opinion, dated the type ordinarily included in accountants’ “comfort letters” to underwriters Closing Date and, with respect to the financial statements and certain financial information contained in the Offering StatementOption Shares, the Pricing Disclosure Materials Option Closing Date, satisfactory in form and substance to the Final Offering CircularRepresentative and counsel for the Underwriters from Shibolet & Co., Israeli counsel to the Company, as set forth on Exhibit B. Such counsel shall also furnish to the Representative a negative assurance statement, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
Appears in 1 contract
Samples: Underwriting Agreement (Camtek LTD)
Conditions of the Obligations of the Underwriters. The In addition ------------------------------------------------- to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(a) Notification that the Registration Statement has become effective shall be received by the Underwriters not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Underwriters and all filings required by Rule 424 of the Rules and Regulations and Rule 430A shall have been made.
(i) No no stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters and the Underwriters did not object thereto in good faith, and the Underwriters shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, an Option Closing Date, and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Directors of the Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been a material adverse change in the general affairs, capital stock, indebtedness, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) none of the Company or any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Underwriters any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its Subsidiaries or any of their respective officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of the Underwriters, would reasonably be expected to have Company and its Subsidiaries taken as a Material Adverse Effectwhole.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at an Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at an Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to an Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(ef) On the Closing Date, the The Underwriters shall have received an opinion, dated the opinion Closing Date and, with respect to the Option Shares, an Option Closing Date, and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., satisfactory in form and substance to counsel for the CompanyUnderwriters, addressed from Freshman, Marantz, Orlanski, Xxxxxx & Xxxxx, counsel to the Company and its Subsidiaries, to the effect set forth in Exhibit B, provided, however, that such counsel, in rendering such opinion, shall be entitled to rely, as to matters of Maryland law, on the opinion of Xxxxx & Wood.
(g) The Underwriters shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, an Option Closing Date, from Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), counsel to the Underwriters, dated as of with respect to the Closing DateRegistration Statement, substantially the Prospectus and this Agreement, which opinion shall be satisfactory in the form satisfactory all respects to the Underwriters.
(fh) On the date of the Prospectus, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery, addressed to the Underwriters and in form and substance satisfactory to the Underwriters, confirming that they are independent accountants with respect to the Company as required by the Securities Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement. At the Closing Date and, as to the Option Shares, an Option Closing Date, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date and, as to the Option Shares, an Option Closing Date which would require any change in their letter referred to in the prior sentence and dated the date of the Prospectus, if it were required to be dated and delivered at the Closing Date and an Option Closing Date.
(i) At the Initial Closing and at any Subsequent ClosingDate and, as to the Option Shares, an Option Closing Date, there shall be furnished to the Underwriters a an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Underwriters, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As (A) as of the date of each such certificate, (x) such documents are true and correct in all material respects so far as they relate to the Offering Statement does Company and do not contain any untrue statement of a material fact or omit to state a material fact relating to the Company required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and, not misleading and as to any Option Shares, an Option Closing Date, since the Effective Date, no event has occurred occurred, except such as are described in, or contemplated by, the Prospectus, as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein relating to the Company not untrue or misleading in any material respect.;
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.respects; and
(iii. ) Each of the covenants required herein to be performed by the Company on or prior to the date delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge(j) On the Closing Date and, no stop order suspending as to any Option Shares, on an Option Closing Date, there shall be furnished to the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to Underwriters an accurate certificate, dated the date of its delivery, signed (in their respective capacities as such) by each of the most recent financial Chief Executive Officer and Chief Financial Officer of the Company, in form and substance satisfactory to the Underwriters to the effect that:
(i) Each signer of such certificate has carefully examined the Registration Statement and the Prospectus and (A) as of the date of such certificate, such documents are true and correct in all material respects so far as they relate to ICCC and do not omit to state a material fact relating to ICCC required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (B) in the Offering Statement case of the certificate delivered at the Closing Date and, as to any Option Shares, an Option Closing Date, since the Effective Date, no event has occurred, except such as are described in, or contemplated by, the Prospectus, as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein relating to ICCC not untrue or misleading in any material respect;
(ii) Each of the representations and warranties of the Company relating to ICCC contained in this Agreement were, when originally made, and are, at the Final Offering Circulartime such certificate is delivered, there has been no Material Adverse Changetrue and correct in all material respects; and
(k) No proceeding by any state securities commission with respect to the Company shall be in effect on the Closing Date or an Option Closing Date.
(gl) Prior to the Closing Date, the Shares shall have been duly authorized for listing by the American Stock Exchange upon official notice of issuance.
(m) The National Association of Securities Dealers, Inc. shall have approved the underwriting terms and arrangements and such approval shall not have been withdrawn or limited.
(n) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any at the Closing Date and an Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering Circular, Prospectus as to the accuracy on such at the Closing Date and an Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (Impac Commercial Holdings Inc)
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or, to the knowledge of the Company, contemplated by the Commission or contemplated by, the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Directors of the Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been, and no development shall have occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its Subsidiaries or any of their respective officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of the Underwriters, would reasonably be expected to have Company and its Subsidiaries taken as a Material Adverse Effectwhole.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, dated the Option Closing Date, and satisfactory in form and substance to counsel for the Underwriters, from Dewex Xxxxxxxxxx, xxunsel to the Company, to the effect set forth in Exhibit C.
(g) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from O'Suxxxxxx Xxxev & Karabell, LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives.
(h) On the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at any Subsequent Closingthe Closing Date and the Option Closing Date.
(i) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a Representatives an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither since the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereinEffective Date, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.;
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.respects;
(iii. ) Each of the covenants required herein to be performed by the Company on or prior to the date delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery date of such certificate has been duly, timely and fully complied with.with in every material respect; and
(iv. To their knowledge) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) there has not been, and no stop order suspending development has occurred which could reasonably be expected to result in, a material adverse change in the qualification general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Offering Statement Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of any part thereof has been issued and no proceedings for that purpose have been instituted business, in each case other than as set forth in or are contemplated by the Commission.
v. Subsequent to Registration Statement and the date Prospectus and (B) neither the Company nor any of the most recent financial statements its Subsidiaries has sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Offering Registration Statement and in the Final Offering CircularProspectus, there has been no Material Adverse Changeand such other matters as the Representatives may reasonable request.
(gj) On or prior to the Closing Date, the Representatives shall have received the executed agreements referred to in Section 4(n).
(k) The Company Shares shall be qualified for sale in such states as the Representatives may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date.
(l) Prior to the Closing Date, the Shares shall have been duly authorized for listing by the Nasdaq National Market upon official notice of issuance.
(m) The NASD shall have approved the underwriting terms and arrangements and such approval shall not have been withdrawn or limited.
(n) The company shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering Circular, Prospectus as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentatives.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (N2k Inc)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to (1) the accuracy of the representations and warranties on the part of the Company and each of the Selling Stockholders set forth in Section 3Sections 3 and 4 hereof, respectively, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company and each of the Selling Stockholders of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(i) No stop order suspending the qualification of the Offering Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Statement or the qualification or exemption 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 threatened or contemplated by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Statement or the Final Offering Circular shall have been filed unless a copy thereof was first submitted to the Underwriters Underwriter and the Underwriters Underwriter did not object thereto in good faith, and the Underwriters Underwriter shall have received certificates of the Company, dated as of each Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters Underwriter there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding, in the reasonable judgment of the UnderwritersUnderwriter, would reasonably be expected to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company and each Selling Stockholder contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and each Selling Stockholder and all conditions herein contained to be fulfilled or complied with by the Company and each Selling Stockholder at or prior to such Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters Underwriter shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C.of DLA Piper LLP (US), counsel for the Company, addressed to the UnderwritersUnderwriter, dated as of the Closing Date, substantially in the form satisfactory to the UnderwritersUnderwriter.
(f) On the Closing Date, the Underwriter shall have received the opinion of [______], counsel for the Selling Stockholders, addressed to the Underwriter, dated as of the Closing Date, substantially in the form satisfactory to the Underwriter.
(g) At the Initial Closing and at any Subsequent Closing, there shall be furnished to the Underwriters Underwriter a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Underwriter to the effect that each signer has carefully examined the Offering Statement, the Final Offering Circular and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
i. (i) As of the date of each such certificate, (x) the Offering Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (2) no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
(iii. ) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv. To their knowledge, no ) No stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. (v) Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.
(gh) The Company and the Selling Stockholders shall have furnished or caused to be furnished to the Underwriters Underwriter such certificates, in addition to those specifically mentioned herein, as the Underwriters Underwriter may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company and the Selling Stockholders as to the performance by the Company and the Selling Stockholders of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersUnderwriter.
(hi) On or prior to the date hereof, the Company and the Selling Stockholders shall each have furnished to the Underwriters Underwriter an agreement substantially in the form of Exhibit B hereto from (i) each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and (ii) each of the Selling Stockholders, as applicable, in each case as named in Schedule E hereto, and each such agreement shall be in full force and effect on the Closing Date.
(ij) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(jk) The Company shall have furnished or caused to be furnished to the Underwriters Underwriter on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters Underwriter may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(kl) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(lm) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter the Underwriters hereunder are subject to the following conditions:
(1a) Confirmation that the accuracy Registration Statement is effective shall be received by the Underwriters not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Underwriters and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption registration of the Shares Units under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters and the Underwriters did not object thereto in good faith, and the Underwriters shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date signed by the President and Chief Executive Officer of the Company, Partnership and the Chief Financial Officer of the CompanyPartnership (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii), (iii) and (iiiiv).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering StatementRegistration Statement and the Prospectus, (i) there shall not have been, and no development shall have occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Partnership, the Pricing Disclosure Materials Intermediate Partnership or Northern Border Pipeline whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Final Offering CircularProspectus and (ii) none of the Partnership, the Intermediate Partnership or Northern Border Pipeline shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the 16 Prospectus, if in the judgment of the Underwriters any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units by the Underwriters at the public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against any of the Company Partnership, the Intermediate Partnership or Northern Border Pipeline or any of its their respective general partners, officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of any of the UnderwritersPartnership, would reasonably be expected to have a Material Adverse Effectthe Intermediate Partnership or Northern Border Pipeline.
(de) Each of the representations and warranties of the Company Partnership, and the Intermediate Partnership contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations at the Closing Date, and warranties that are not qualified by materialitywith respect to the Option Units, at the Option Closing Date as if made on such dateat the Closing Date and, with respect to the Option Units, at the Option Closing Date and all covenants and agreements herein contained to be performed on the part of the Company Partnership, and the Intermediate Partnership and all conditions herein contained to be fulfilled or complied with by the Company Partnership and the Intermediate Partnership at or prior to such the Closing Date Date, and with respect to the Option Units, at the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(ef) On The Underwriters shall have received an opinion, dated the Closing Date, and with respect to the Option Units, at the Option Closing Date, and satisfactory in form and substance to counsel for the Underwriters, from Vinsxx & Xlkixx, X.L.P., counsel to the Partnership and the Intermediate Partnership to the effect set forth in Exhibit C.
(g) The Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwritersan opinion, dated as of the Closing Date, substantially and with respect to the Option Units, at the Option Closing Date, and satisfactory in form and substance to counsel for the form Underwriters, from Janex X. Xxxce, Esq., General Counsel of Northern Plains, to the effect set forth in Exhibit D.
(h) The Underwriters shall have received an opinion, dated the Closing Date, and with respect to the Option Units, at the Option Closing Date, from Andrxxx & Xurtx X.X.P., counsel to the Underwriters which opinion shall be satisfactory in all respects to the Underwriters.
(fi) On the date of this Agreement, Arthxx Xxxexxxx XXX shall have furnished to the Underwriters a letter, dated the date of its delivery, addressed to the Underwriters and in form and substance satisfactory to the Underwriters, confirming that they are independent accountants with respect to the Partnership and the Intermediate Partnership as required by the Act and the Rules and Regulations, and with respect to certain financial information contained in the Registration Statement or incorporated by reference therein. At the Closing 17 Date and, with respect to the Option Units, at the Option Closing Date, Arthxx Xxxexxxx XXX shall have furnished to the Underwriters a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from Arthxx Xxxexxxx XXX, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date hereof, if it were required to be dated and delivered at the Closing Date and the Option Closing Date.
(j) At the Initial Closing and Date and, with respect to the Option Units, at any Subsequent Closingthe Option Closing Date, there shall be furnished to the Underwriters a an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of Partnership and the CompanyIntermediate Partnership, in form and substance satisfactory to the Underwriters Underwriters, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus) and the Pricing Disclosure Materials, and that to each of such person’s knowledge:Underwriting Agreement;
i. As of the date of each such certificate, (xii) the Offering Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.
ii. Each of the representations and warranties of the Company Partnership and the Intermediate Partnership contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.respects;
(iii. ) Each of the covenants required herein to be performed by the Company Partnership or the Intermediate Partnership on or prior to the delivery of such certificate has been duly, timely and fully performed, each condition herein required to be complied with by the Partnership and the Intermediate Partnership on or prior to the date of such certificate has been duly, timely and fully performed complied with, and each other condition herein required concurrent or precedent to the obligations of the Underwriters hereunder has been fulfilled; and
(iv) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) there has not been, and no development has occurred which could reasonably be complied with expected to result in, a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Partnership, the Intermediate Partnership or Northern Border Pipeline, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Company on Registration Statement and the Prospectus and (B) neither the Partnership, the Intermediate Partnership nor Northern Border Pipeline has sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order 18 or decree, which is not set forth in the Registration Statement and the Prospectus; and such other matters as the Underwriters may reasonably request.
(k) On or prior to the delivery of such certificate has been dulyClosing Date, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification Underwriters shall have received waivers from each of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent General Partners with respect to the date preemptive rights set forth in Section 4.3 of the most recent financial statements in Partnership Agreement with respect to the Offering Statement and in the Final Offering Circular, there has been no Material Adverse ChangeCommon Units to be sold pursuant to this Agreement.
(gl) The Company Units shall be qualified for sale in such states as the Underwriters may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date.
(m) Prior to the Closing Date, the Units shall have furnished or caused been duly authorized for listing by the New York Stock Exchange subject to be official notice of issuance.
(n) The agreements contemplated by Section 4(n) shall have been delivered to the Underwriters in a form reasonably satisfactory to them.
(o) The Partnership shall have furnished to the Underwriters such certificatescertificates from the Chief Executive Officer and Chief Financial Officer of the Partnership and the Intermediate Partnership, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwritersrequested.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (Northern Border Partners Lp)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter under the Purchase Agreement and the consummation of the transaction contemplated hereunder are subject to the following conditions:
(1a) the accuracy All filings required under Rule 424 and 430A of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance Regulations to be made by the Company of its covenants and obligations hereunder, and (3) each of prior to the following additional conditions:Closing shall have been made by the Company.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption registration of the Shares Notes under the securities or Blue Sky blue sky laws of any jurisdiction shall be in effect effect, and no proceeding for such purpose purposes shall be pending before, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities authorities, and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters and the Underwriters Agent did not object thereto in good faith, and the Underwriters Agent shall have received certificates of the Companycertificates, dated as of each the Closing Date and signed by the President and Chief Executive Officer of the Company, Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of the foregoing clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been a material adverse change in the general affairs, business, properties, management, financial condition or results of operations of the Company whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any material loss or interference with its business, assets or properties from fire, explosion, flood or other casualty, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers officers, directors or directors shareholders in their capacities as such, or any of its assets or properties, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, Governmental Body in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, financial condition, net worth or results of operations of the Underwriters, would reasonably be expected to have a Material Adverse EffectCompany.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each at the Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityDate, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date Date, shall have been duly fully performed, fulfilled or complied with in all material respectswith.
(ef) On the Closing Date, the Underwriters The Agent shall have received the an opinion and 10b-5 negative assurances letter from Pietxxxxxxx Xxxxxx Xxxxxx LLP& Xlvaxxx, WashingtonXXP, D.C., Puerto Rico counsel for the Company, addressed to and an opinion from Browx & Xood, New York Counsel for the UnderwritersCompany, each dated as of the Closing Date, substantially in the form and substance satisfactory to the UnderwritersAgent.
(fg) The Agent shall have received an opinion, dated the Closing Date, from O'Nexxx & Xorgxx, xxunsel to the Underwriters, which opinion shall be satisfactory in all respects to the Agent.
(h) Concurrently with the execution and delivery of this Agreement, or, if the Company elects to rely on Rule 430A, on the date of the Prospectus, the Accountants shall have furnished to the Agent a letter, dated the date of its delivery (the "Original Letter"), addressed to the Agent and in form and substance satisfactory to the Agent, to the effect that:
(i) they are independent accountants within the meaning of the Act and the applicable published rules and regulations thereunder;
(ii) in their opinion, the consolidated financial statements of the Company and its Subsidiaries audited by them and incorporated by reference in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act, the Exchange Act and the published rules and regulations thereunder with respect to registration statements on Form S-3;
(iii) on the basis of procedures (but not an audit in accordance with generally accepted auditing standards) consisting of (a) reading the minutes of meetings of the stockholders and the Board of Directors of the Company and its Subsidiaries since December 31, 2000 as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of the Original Letter; (b) reading the unaudited interim financial data for the period from the date of the latest balance sheet incorporated by reference in the Prospectus to the date of the latest available interim financial data; and (c) making inquiries of certain officials of the Company who have responsibility for financial and accounting matters regarding the specific items for which representations are requested below; nothing has come to their attention (as of a date not more than five business days prior to the date of the delivery of such letter) as a result of the foregoing procedures that caused them to believe that: (1) at the date of the latest available interim financial data and at a specified date not more than five business days prior to the date of delivery of the Original Letter there was any change in the capital stock, deposits, federal funds purchased or securities sold under agreements to repurchase or any decreases in the consolidated stockholders' equity (only as to the latest interim financial data) of the Company and its Subsidiaries as compared with amounts shown in the December 31, 2000 balance sheet incorporated by reference in the Prospectus and (2) for the period from December 31, 2000, to the latest interim financial data available which should be no later than forty (40) days prior to the date of delivery of the Original Letter, there were any decreases, as compared with the corresponding period in the preceding year, in consolidated net interest income, other income, income before taxes or in the total or per share amounts of net income, except in all instances for changes or decreases which the Registration Statement discloses have occurred or may occur, or they shall state any specific changes or decreases; and
(iv) they have compared specific amounts expressed in dollars (or percentages derived from such dollar amounts) and other financial information contained or incorporated by reference in the Prospectus or Prospectus Supplement, which has been obtained from accounting records that are subject to the internal controls of the Company's accounting system or which has been derived directly from such accounting records and analysis or computation, with the results obtained from inquiries or reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results. At the Closing Date, the Accountants shall have furnished to the Agent a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the Original Letter, that nothing has come to their attention during the period from the date of the Original Letter referred to in the prior sentence to a date (specified in the letter) not more than five business days prior to the Closing Date, which would require any change in the Original Letter if it were required to be dated and delivered at the Closing Date. In the event that the letters referred to above set forth any such changes, decreases or increases, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Agent deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Agent, make it impractical or inadvisable to proceed with the purchase and delivery of the Notes as contemplated by the Registration Statement and the Prospectus, as amended as of the date hereof.
(i) At the Initial Closing and at any Subsequent ClosingDate, there shall be furnished to the Underwriters a Agent an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Agent, to the effect that each to the best of their knowledge:
(i) Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As (A) as of the date of each such certificate, (x) the Offering Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains Prospectus does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.;
(ii. ) Each of the representations and warranties of the Company contained in this Agreement Agreement, were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
iii. Each respects; each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no (iii) No stop order suspending the qualification effectiveness of the Offering Registration Statement or of any part thereof post-effective amendment thereto and no order directed at any document incorporated by reference in the Registration Statement or any amendment thereto or the Prospectus has been issued issued, and no proceedings for that purpose have been instituted or threatened or, to the best of the Company's knowledge, are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.
(gj) The Company shall have furnished or caused to be furnished to the Underwriters Agent such certificates, letters and other documents, in addition to those specifically mentioned herein, as the Underwriters Agent may have reasonably requested as to the accuracy and completeness on any at the Closing Date and Date, of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus, as to the accuracy on such at the Closing Date of the representations and warranties of the Company Company, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(hk) On The Agent shall have received copies, duly certified by the Secretary or prior to the date hereof, an Assistant Secretary of the Company of the resolutions or other corporate actions adopted or taken by the Company in connection with the transactions contemplated herein.
(l) The Agent shall have furnished to received a copy of the Underwriters an agreement substantially in the form certificate of Exhibit B hereto from each incorporation of the Company’s officers, directorsas amended, and 10% certified as of greater security holders a recent date by the appropriate officer of the Company’s Common Stock or securities convertible into or exercisable for shares Commonwealth, together with certificates dated as of a recent date from the Secretary of State of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished Commonwealth as to the Underwriters on each Closing Date satisfactory evidence of the existence and good standing of the Company and under the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness laws of the plan of distribution, or other arrangements Commonwealth and copies of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any by-laws of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration Company certified by the United States of a national emergency Secretary or war or (d) 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 (c) or (d) in the judgment an Assistant Secretary of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering CircularCompany.
(m) At the Closing Date and at any Subsequent Closing, the Accountants The Underwriters shall have furnished to received such other documentation, certificates and opinions as may be reasonably required by the Underwriters a letterUnderwriters. All such opinions, dated certificates, letters and other documents will be in compliance with the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and provisions hereof only if they are satisfactory in form and substance to you. The Company will furnish you with such conformed copies of such opinions, certificates, letters and other documents as you shall reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circularrequest.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter the Underwriters hereunder are subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption registration of the Shares Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters and the Underwriters did not object thereto in good faith, and the Underwriters shall will have received certificates of the Companycertificates, dated as of each the Closing Date and signed by the President and Chief Executive Officer Officer, President or a Vice President of the Company, Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering Circular, in the reasonable judgment of the Underwriters Prospectus (i) there shall not have occurred been a Material Adverse Changematerial adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, and in the Representatives’ judgment makes it impracticable or inadvisable to consummate the sale and delivery of the Securities by the Underwriters in accordance with the terms hereof and thereto.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, there shall have been no litigation or other proceeding instituted against the Company or any of its Subsidiaries or any of their respective officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of the Underwriters, would reasonably be expected to have Company and its Subsidiaries taken as a Material Adverse Effectwhole.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality, at the Closing Date as if made on such dateat the Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date shall have been duly performed, fulfilled or complied with in all material respectswith.
(e) On The Underwriters will have received opinions, each dated the Closing Date, the Underwriters shall have received the opinion Date and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., satisfactory in form and substance to counsel for the Company, addressed to the Underwriters, from (i) Xxxxx & Xxxxxxx, counsel to the Company, to the effect set forth in Exhibit B, (ii) Anderson, Byrd, Xxxxxxxx, Xxxxxxxx and Xxxxxxxx LLP, Kansas counsel to the Company, to the effect set forth in Exhibit C, (iii) Xxxxxx & Xxxxxx, Texas counsel to the Company, to the effect set forth in Exhibit D and (iv) Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, to the effect set forth in Exhibit E.
(f) The Underwriters will have received an opinion, dated as of the Closing DateDate from Shearman & Sterling LLP, substantially counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in the form satisfactory all respects to the Underwriters.
(fg) On the date of the Prospectus, the Accountant shall have furnished to the Underwriters a letter, dated the date of its delivery, addressed to the Underwriters and in form and substance satisfactory to the Underwriters, containing statements and information of the type ordinarily included in accountant’s “comfort letters” to underwriters, delivered according to Statement of Accounting Standards No. 72 (or any successor bulletin), with respect to the audited and unaudited financial statements and certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement and the Prospectus. At the Closing Date the Accountant shall have furnished to the Underwriters a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountant, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date that would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at the Closing Date.
(h) At the Initial Closing and at any Subsequent ClosingDate, there shall be furnished to the Underwriters a an accurate certificate, dated the date of its delivery, signed by each of the Chief Executive Officer, President or a Vice President and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Underwriters, to the effect that that:
(i) each signer of such certificate has carefully examined reviewed the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus (including any documents filed under the Exchange Act and that deemed to each of such person’s knowledge:
i. As be incorporated by reference into the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither since the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereinEffective Date, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.respect and there has been no document required to be filed under the Exchange Act and the Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the Prospectus that has not been so filed;
(ii. Each ) each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.respects; and
(iii. Each ) each of the covenants required herein to be performed by the Company on or prior to the date delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge(i) The Securities will be qualified for sale in such states as the Underwriters may reasonably request, no each such qualification shall be in effect and not subject to any stop order suspending or other proceeding on the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse ChangeClosing Date.
(gj) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any at the Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, as to the accuracy on such at the Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(hk) On Subsequent to the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded any securities or preferred stock of or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act and (ii) except as disclosed in the Prospectus, no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of any securities or preferred stock of or guaranteed by the Company or any of subsidiaries (other than an announcement with positive implications of a possible upgrading). If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Underwriters by notice to the Company at any time on or prior to the date hereofClosing Date, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement which termination shall be in full force and effect without liability on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) the occurrence part of any party to any other calamity or crisis or any change in financialparty, political or economic conditions in the United States or elsewhereexcept that Section 4, if the effect of any Section 6, Section 8 and Section 11 shall at all times be effective and shall survive such event specified in clause (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circulartermination.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters did Representatives do not object thereto in good faith; provided, and however that the Underwriters shall not unreasonably object or delay, and (v) the Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its their respective officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentatives, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representatives, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, as if made on such datewith respect to the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date from Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, counsel to the Company in substantially the form set forth in Schedule IV hereto. In rendering such opinion, such counsel may rely as to matters of local law upon opinions of counsel satisfactory in form and substance to the Representatives and counsel for the Underwriters, provided that the opinion of counsel to the Company shall state that they are doing so, that they have no reason to believe that they and the Underwriters are not entitled to rely on such opinions and that copies of such opinions are to be attached to the opinion. In addition, such counsel shall state that in connection with such counsel’s participation in the preparation of the Registration Statement, the Prospectus and the General Disclosure Package, such counsel has no reason to believe (i) that, as of the Effective Date, the Registration Statement or any further amendment thereto (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no belief) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) that the General Disclosure Package (other than the financial statements, schedules and other financial and statistical data contained or incorporated by reference therein, as to which such counsel need express no belief), as of the Applicable Time contained any 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, or (iii) that the Prospectus, or any further amendment or supplement thereto, as of its date and the Closing Date and, if later, the Option Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no belief).
(g) The Representatives shall have received an opinion, dated the Closing Date or the Option Closing Date, as the case may be, from Xxxxxx, Xxxx & Xxxxxxx LLP, counsel to the Underwriters, satisfactory in form and substance to the Representatives.
(h) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date and the Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at any Subsequent Closingthe Closing Date and the Option Closing Date.
(i) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters Representatives a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither since the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialitycorrect.
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gj) On or prior to the Closing Date, the Representatives shall have received the executed agreements referred to in Section 4(n).
(k) The Shares shall be qualified for sale in such jurisdictions as the Representatives may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the Option Closing Date.
(l) Prior to the Closing Date, the Shares shall have been duly authorized for listing on the NGM upon official notice of issuance.
(m) The Company shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus, as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentatives.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430B of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering ADS Registration Statement, the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering ADS Registration Statement, the Registration Statement or the qualification or exemption registration of the Shares ADSs under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement ADS Registration Statement, the Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters did Representative does not object thereto in good faith, and (v) the Underwriters shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the applicable Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Offered ADSs by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentative, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Offered ADSs by the Underwriters at the initial public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option ADSs, at the applicable Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option ADSs, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Underwriters shall have received an opinion, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters from Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, U.S. counsel to the Company and Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx (Europe) LLP, French counsel to the Company. In addition, such U.S. counsel shall state that in connection with such counsel’s participation in the preparation of the Registration Statement, the Prospectus and the General Disclosure Package, such counsel has no reason to believe (i) that, as of the Effective Date, the Registration Statement or any further amendment thereto (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no belief) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) that the General Disclosure Package (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no belief), as of the Applicable Time contained any 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, or (iii) that the Prospectus, or any further amendment or supplement thereto, as of its date and the Closing Date and, if later, the applicable Option Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no belief).
(g) [Reserved].
(h) The Underwriters shall have received an opinion, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters, of Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel for the Depositary, addressed to the addressed to the Representative on behalf of itself and the several Underwriters .
(i) The Underwriters shall have received a negative assurance letter, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, as the case may be, from The NBD Group, Inc., counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which negative assurance letter shall be satisfactory in all respects to the Representative.
(j) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery, addressed to the Representative on behalf of itself and the several Underwriters and in form and substance satisfactory to the Representative, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Initial Closing Date and, as to the Option ADSs, the applicable Option Closing Date, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at any Subsequent Closingthe Closing Date or the applicable Option Closing Date, as the case may be.
(k) At the Closing Date and, as to the Option ADSs, the applicable Option Closing Date, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by the Chief Financial Officer of the Company with respect to certain financial data contained in the Registration Statement, the General Disclosure Package, the Prospectus and the roadshow presentation, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative.
(l) At the Closing Date and, as to the Option ADSs, the applicable Option Closing Date, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representative, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the applicable Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gm) Concurrently with the execution and delivery of this Agreement and at the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, there shall have been furnished to the Underwriters a certificate, dated the delivery date signed by the Chief Financial Officer of the Company, in form and substance satisfactory to the Representative.
(n) On or prior to the Closing Date, the Underwriters shall have received the executed agreements referred to in Section 4(n).
(o) The Deposit Agreement shall be in full force and effect and the Company and the Depositary shall have taken all action necessary to permit the deposit of the Ordinary Shares and the issuance of the Offered ADSs in accordance with the Deposit Agreement.
(p) The Depositary shall have furnished or caused to be furnished to the Underwriters a certificate satisfactory to the Representative of one of its authorized officers evidencing the deposit with the custodian of the Ordinary Shares against issuance of the ADRs evidencing the Offered ADSs, the execution, issuance, countersignature (if applicable) and delivery of the ADRs evidencing the Offered ADSs pursuant to the Deposit Agreement and such other matters related thereto as the Representative reasonably requests.
(q) The Offered ADSs shall be qualified for sale in such jurisdictions as the Underwriters may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the applicable Option Closing Date.
(r) Prior to the Closing Date, the Offered ADSs and the Underlying Shares shall have been duly authorized for listing on the NYSE upon official notice of issuance.
(s) The Company shall have furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters Representative may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the applicable Option Closing Date of any statement in the Offering Registration Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Prospectus or the Final Offering CircularGeneral Disclosure Package, as to the accuracy on such at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representative not later than 5:30 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representative and all filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of any preliminary prospectus, the Prospectus, or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters did Representative do not object thereto in good faith, and (v) the Underwriters Representative shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the applicable Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentative, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option Shares, at the applicable Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(ef) On The Representative shall have received an opinion and negative assurance letter, each dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for to the Company, addressed in form and substance previously agreed to the Underwritersbetween Xxxxxx LLP and Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, dated as of the Closing Date, substantially in the form satisfactory counsel to the Underwriters.
(fg) The Representative shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters to the effect set forth in Annex A hereto from Xxxxx Law Firm, special People’s Republic of China counsel for the Company.
(h) The Representative shall have received an opinion and negative assurance letter, dated the Closing Date or the applicable Option Closing Date, as the case may be, from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion and negative assurance letter shall be satisfactory in all respects to the Representative.
(i) Concurrently with the execution and delivery of this Agreement, each of the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, addressed to the Representative and in form and substance satisfactory to the Representative, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Closing Date and, as to the Option Shares, the applicable Option Closing Date, each of the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from such Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date or the applicable Option Closing Date, as the case may be.
(j) At the Initial Closing and at any Subsequent ClosingDate and, as to the Option Shares, the applicable Option Closing Date, there shall be furnished to the Underwriters Representative a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Companysuch, in form and substance reasonably satisfactory to the Underwriters Representative, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the applicable Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements fulfilled in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changeall material respects.
(gk) On or prior to the Closing Date, the Representative shall have received the executed agreements referred to in Section 4(n).
(l) The Shares shall be qualified for sale in such jurisdictions as the Representative may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the applicable Option Closing Date.
(m) Prior to the Closing Date, the Shares shall have been duly authorized for listing on the NYSE upon official notice of issuance.
(n) The Company shall have furnished or caused to be furnished to the Underwriters Representative such certificates, in addition to those specifically mentioned herein, as the Underwriters Representative may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the applicable Option Closing Date of any statement in the Offering Registration Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Prospectus or the Final Offering CircularGeneral Disclosure Package, as to the accuracy on such at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentative.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters did Representatives does not object thereto in good faith, and (v) the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the applicable Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentatives, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representatives, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, as if made on such datewith respect to the Option Shares, at the applicable Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, satisfactory in form and substance to the Representatives and U.S. counsel for the Underwriters from Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, counsel to the Company, as set forth on Exhibit A. Such counsel shall also furnish to the Representatives a negative assurance statement, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(g) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, satisfactory in form and substance to the Representatives and counsel for the Underwriters from Shibolet & Co., Israeli counsel to the Company, as set forth on Exhibit B. Such counsel shall also furnish to the Representatives a negative assurance statement, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(h) The Representatives shall have received an opinion and negative assurance letter, dated the Closing Date and the Option Closing Date, from Proskauer Rose LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion and negative assurance letter shall be satisfactory in all respects to the Representatives.
(i) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from Meitar Liquornik Xxxx Xxxxxx Tal, Israeli counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives.
(j) Concurrently with the execution and delivery of this Agreement, Xxxx Xxxxx Xxxxxx and Kaiserer shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that it is an independent accountant with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, Xxxx Xxxxx Xxxxxx and Kasierer shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountant, that nothing has come to its attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the Option Closing Date, as the case may be, which would require any change in its letter dated the date hereof if it were required to be dated and delivered at any Subsequent Closingthe Closing Date or the Option Closing Date, as the case may be.
(k) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters Representatives a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (as updated to include any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents, as updated, are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither since the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects for those representations (except that any representation and warranties warranty qualified by materiality shall be true and correct in all material respects for those representations and warranties that are not qualified by materialityrespects).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gl) On or prior to the Closing Date, the Representatives shall have received the executed agreements referred to in Section 4(n).
(m) The Shares shall be qualified for sale in such jurisdictions as the Representatives may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the Option Closing Date.
(n) Prior to the Closing Date, the Shares shall have been duly authorized for listing on each of the NASDAQ and the TASE.
(o) The Company shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Registration Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Prospectus or the Final Offering CircularGeneral Disclosure Package, as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentatives.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters did Representative does not object thereto in good faith, and (v) the Underwriters Representative shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the applicable Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentative, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(de) Each of the representations and warranties of the Company and the Selling Stockholders contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option Shares, at the applicable Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company or the Selling Stockholders and all conditions contained herein contained to be fulfilled or complied with by the Company or the Selling Stockholders at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(ef) On The Representative shall have received an opinion and negative assurance letter, each dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for to the Company, addressed in form and substance previously agreed to the Underwritersbetween Xxxxxx LLP and Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, dated as of the Closing Date, substantially in the form satisfactory counsel to the Underwriters.
(fg) The Representative shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, from Fenwick & West LLP, counsel to one of the Selling Stockholders on behalf of all of the Selling Stockholders (other than Madrone Partners, L.P., with respect to which such opinion shall be given by Xxxxxx LLP), in form and substance previously agreed to between Fenwick & West LLP (or Xxxxxx LLP, with respect to the opinion given by Xxxxxx LLP) and Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel to the Underwriters.
(h) The Representative shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, from Xxxxx IP Law Group, outside patent counsel for the Company, in form and substance previously agreed to between Xxxxx IP Law Group and Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel to the Underwriters.
(i) The Representative shall have received an opinion and negative assurance letter, dated the Closing Date or the applicable Option Closing Date, as the case may be, from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representative.
(j) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, addressed to the Representative and in form and substance satisfactory to the Representative, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Closing Date and, as to the Option Shares, the applicable Option Closing Date, the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date or the applicable Option Closing Date, as the case may be.
(k) At the Initial Closing and at any Subsequent ClosingDate and, as to the Option Shares, the applicable Option Closing Date, there shall be furnished to the Underwriters Representative a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, Company in their capacities as officers of the Companysuch, in form and substance satisfactory to the Underwriters Representative, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the applicable Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully satisfied or fulfilled.
(l) At the Closing Date and, as to the Option Shares, the applicable Option Closing Date, there shall be furnished to the Representative a certificate, dated the date of its delivery, signed by the Selling Stockholders (or the Attorneys-in-Fact on their behalf), in form and substance satisfactory to the Representative, to the effect that the representations and warranties of the Selling Stockholders contained herein are true and correct in all material respects on and as of the date of such certificate as if made on and as of the date of such certificate, and each of the covenants and conditions required herein to be performed or complied with by the Selling Stockholders on or prior to the date of such certificate has been duly, timely and fully performed or complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement (m) On or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent prior to the date of Closing Date, the most recent financial statements Representative shall have received the executed agreements referred to in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse ChangeSection 5(m).
(gn) The Shares shall be qualified for sale in such jurisdictions as the Representative may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the applicable Option Closing Date.
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to the Underwriters Representative such certificates, in addition to those specifically mentioned herein, as the Underwriters Representative may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the applicable Option Closing Date of any statement in the Offering Registration Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Prospectus or the Final Offering CircularGeneral Disclosure Package, as to the accuracy on such at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company and the Selling Stockholders herein, as to the performance by the Company and the Selling Stockholders of its and their respective obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentative.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or, to the knowledge of the Company, contemplated by the Commission or contemplated by, the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Directors of the Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been, and no development shall have occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its Subsidiaries or any of their respective officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of the Underwriters, would reasonably be expected to have Company and its Subsidiaries taken as a Material Adverse Effectwhole.
(de) Each of the representations and warranties of the Company and the Selling Shareholders contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and the Selling Shareholders and all conditions herein contained to be fulfilled or complied with by the Company and the Selling Shareholders at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representatives shall have received opinions, dated the Closing Date and, with respect to the Option Shares, dated the Option Closing Date, and satisfactory in form and substance to counsel for the Underwriters, from Dewex Xxxxxxxxxx XXX, counsel to the Company, and from counsel to each of the Selling Shareholders, to the effect set forth in Exhibit D and Exhibit E, respectively.
(g) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from O'Suxxxxxx Xxxev & Karabell, LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives.
(h) On the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at any Subsequent Closingthe Closing Date and the Option Closing Date.
(i) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a Representatives an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither since the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereinEffective Date, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.;
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.respects;
(iii. ) Each of the covenants required herein to be performed by the Company on or prior to the date delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the date of such certificate has been duly, timely and fully complied with in every material respect; and
(iv) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) there has not been, and no development has occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (B) neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, and such other matters as the Representatives may reasonably request.
(j) At the Closing Date, there shall be furnished to the Representatives an accurate certificate, dated the date of its delivery, signed by the Committee on behalf of each of the Selling Shareholders, in form and substance satisfactory to the Representatives, to the effect that the representations and warranties of each of the Selling Shareholders contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects, and each of the covenants required herein to be performed by the Selling Shareholders on or prior to the delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated with by the Commission.
v. Subsequent Selling Shareholders on or prior to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there such certificate has been no Material Adverse Changeduly, timely and fully complied with in every material respect.
(gk) On or prior to the Closing Date, the Representatives shall have received the executed agreements referred to in Section 5(n).
(l) The Shares shall be qualified for sale in such states as the Representatives may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date.
(m) Prior to the Closing Date, the Shares shall have been duly authorized for listing by the Nasdaq National Market upon official notice of issuance.
(n) The NASD shall have approved the underwriting terms and arrangements and such approval shall not have been withdrawn or limited.
(o) The Company and the Selling Shareholders shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering Circular, Prospectus as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company and the Selling Shareholders herein, as to the performance by the Company and the Selling Shareholders of its their respective obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentatives.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (N2k Inc)
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then Regulations shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that such purpose shall be pending before or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption registration of the Shares Units under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before, before or threatened or contemplated by, by the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters and the Underwriters did not reasonably object thereto in good faith, and the Underwriters shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer Chairman of the Company, Board of Directors and the Chief Financial Officer President of the CompanyGeneral Partner (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been, and no development shall have occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, prospects, properties, management, condition (financial or otherwise) or results of operations of the Partnership and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Partnership nor any of its subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Underwriters any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units by the Underwriters at the public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company Heritage Parties or any of its their subsidiaries or any of their respective officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of the Underwriters, would reasonably be expected to have Partnership and its subsidiaries taken as a Material Adverse Effectwhole.
(de) Each of the representations and warranties of the Company Heritage Parties contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Units, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Units, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company Heritage Parties and all conditions herein contained to be fulfilled or complied with by the Company Heritage Parties at or prior to such the Closing Date and, with respect to the Option Units, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) At the Initial Closing and at any Subsequent Closing, there The Underwriters shall be furnished to the Underwriters a certificatehave received an opinion, dated the date of its deliveryClosing Date and, signed by each of with respect to the President and Option Units, the Chief Financial Officer of the CompanyOption Closing Date, in their capacities as officers of the Company, satisfactory in form and substance satisfactory to counsel for the Underwriters, from Andrxxx & Xurtx X.X.P., counsel to the Underwriters Partnership, to the effect that each signer has carefully examined the Offering Statement, the Final Offering Circular and the Pricing Disclosure Materials, and that to each of such person’s knowledgethat:
i. As of the date of each such certificate, (x) the Offering Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.
ii. Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
iii. Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.
(g) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence Each of the good standing of the Company Partnership and the Subsidiaries Operating Partnership has been duly formed and is validly existing in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as a limited partnership under the Underwriters may reasonably requestDelaware LP Act with all necessary partnership power and authority to own or lease its properties and conduct its business, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or all material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services respects as described in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering CircularProspectus.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (Heritage Propane Partners L P)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter the Underwriters hereunder are subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption registration of the Offered 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 threatened or contemplated by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, any Permitted Free Writing Prospectus or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Grandview and the Underwriters Grandview did not object thereto in good faith, and the Underwriters Grandview shall have received certificates of the Company, dated as of each the Initial Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Board of Directors of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus: (i) there shall not have been a Material Adverse Change, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the reasonable judgment of Grandview any such development makes it impracticable or inadvisable to consummate the Underwriters there shall not have occurred a Material Adverse Changesale and delivery of the Offered Shares to Investors as contemplated hereby.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding, in the reasonable judgment of the UnderwritersGrandview, would reasonably be expected to could have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityDate, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the The Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwritersan opinion, dated as of the Initial Closing Date, substantially in the form satisfactory of Xxxxxx + Xxxxxx LLP with respect to the Underwritersmatters set forth in Exhibit F hereto.
(f) Satisfactory completion by Grandview of its due diligence investigation and analysis of: (i) the Company’s arrangements with its officers, directors, employees, affiliates, customers and suppliers, (ii) the audited historical financial statements of the Company for the fiscal years ended June 30, 2007, 2008 and 2009 and (iii) the Company’s projected financial results for the fiscal years ending December 31, 2010 through 2011.
(g) The execution of this Underwriting Agreement.
(h) The Company meeting the criteria necessary for inclusion of the Common Stock on the NASDAQ Capital Market and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the Closing.
(i) Neither the Company not any of its affiliates has, either prior to the initial filing or the effect date of the Registration Statement, made any offer or sale of any securities which are required to be “integrated” pursuant to the Securities Act or the regulations thereunder with the offer and sale of the Offered Shares pursuant to the Registration Statement.
(j) The Company’s registration of the Common Stock under the provisions of Section 12(b) or (g), as applicable, of the Securities Exchange Act of 1934 on or prior to the effective date of the offering.
(k) The Company obtaining and maintaining a qualified Chief Financial Officer.
(l) The Company retaining a firm of independent certificate public accountants acceptable to Grandview.
(m) The Company retaining a financial printer reasonably acceptable to Grandview.
(n) The Company retaining a transfer agent for the Company’s Common Stock reasonably acceptable to Grandview.
(o) The Company engaging a financial public relations firm reasonably acceptable to Grandview.
(p) The Company registering with the Corporation Records Services published by Standard & Poor’s Corporation.
(q) Prior to the Initial Closing Date, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance satisfactory to Grandview, confirming that: (i) they are independent public accountants with respect to the Company within the meaning of the Securities Act and the Rules and Regulations; (ii) in their opinion, the financial statements and any supplementary financial information included in the Registration Statement and examined by them comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Rules and Regulations; (iii) on the basis of procedures, not constituting an examination in accordance with generally accepted auditing standards, set forth in detail in the Comfort Letter, a reading of the latest available interim financial statements of the Company, inspections of the minute books of the Company since the latest audited financial statements included in the Prospectus, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in the Comfort Letter to a date not more than five days prior to the date of the Comfort Letter, nothing came to their attention that caused them to believe that: (A) as of a specified date not more than five days prior to the date of the Comfort Letter, there have been any changes in the capital stock of the Company or any increase in the long-term debt of the Company, or any decreases in net current assets or net assets or other items specified by Grandview, or any increases in any items specified by Grandview, in each case as compared with amounts shown in the latest balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (B) for the period from the date of the latest financial statements included in the Prospectus to the specified date referred to in Clause (A), there were any decreases in revenues or the total or per share amounts of net income or other items specified by Grandview, or any increases in any items specified by Grandview, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by Grandview, except in each case for decreases or increases which the Prospectus discloses have occurred or may occur or which are described in the Comfort Letter; and (iv) in addition to the examination referred to in their reports included in the Prospectus and the procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by Grandview, which are derived from the general accounting, financial or other records of the Company, as the case may be, which appear in the Prospectus or in Part II of, or in exhibits or schedules to, the Registration Statement, and have compared such amounts, percentages and financial information with such accounting, financial and other records and have found them to be in agreement.
(r) At the Initial Closing and at any Subsequent ClosingDate, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Grandview to the effect that each signer has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure MaterialsProspectus, and that to each of such person’s knowledge:
i. (i) (A) As of the date of each such certificate, (x) the Offering Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (y) the Prospectus does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii. Each of ) All the representations and warranties of the Company contained in this Agreement werethat are qualified as to materiality or Material Adverse Effect shall have been on the date hereof and shall be as of the Initial Closing Date, when originally made, as if made on and are, at as of the time such certificate is deliveredInitial Closing Date, true and correct complete in all respects for those respects, and all the representations and warranties of the Company contained in this Agreement that are not qualified by as to materiality or Material Adverse Effect shall have been true and complete in all material respects for those representations on the date hereof and warranties shall be true and complete in all material respects as of the Initial Closing Date, provided, however, that are not qualified by materialityany representation or warranty of the Company in this Agreement made only as of some date other than the date hereof shall have been true and complete only as of such other date.
(iii. ) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(iv. To their knowledge, no ) No stop order or other order suspending the qualification effectiveness of the Offering Statement Registration Statement, or any part thereof, or the qualification or registration of the Offered Shares under the securities or Blue Sky laws of any part thereof jurisdiction, has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. (v) Any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities.
(vi) Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering CircularProspectus, there has been no Material Adverse Change.
(gs) The Offered Shares shall be qualified for sale in such states as Grandview may reasonably request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on any Closing Date with respect to the sale of the Offered Shares in such state or states, as provided for herein.
(t) The Company shall have furnished or caused to be furnished to the Underwriters such a customary certificate of the Company’s Secretary, as well as certificates, in addition to those specifically mentioned herein, as the Underwriters Grandview may have reasonably requested as to the accuracy and completeness on any at the Initial Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus, as to the accuracy on such at the Initial Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(hu) On or prior to the date hereof, the Company Grandview shall have furnished received the agreements referred to the Underwriters an agreement in Section 3(mm) and (nn) hereof substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, Exhibits D and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing DateE hereto.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters did Representative does not object thereto in good faith, and (v) the Underwriters Representative shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the applicable Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentative, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option Shares, at the applicable Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(ef) On The Representative shall have received an opinion and negative assurance letter, dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx Xxxxxxxx & Markiles, LLP, Washington, D.C., counsel for to the Company, addressed in form and substance previously agreed to the Underwritersbetween Xxxxxx Xxxxxxxx & Markiles, dated as of the Closing DateLLP and DLA Piper LLP (US), substantially in the form satisfactory counsel to the Underwriters.
(fg) The Representative shall have received an opinion and negative assurance letter, dated the Closing Date or the applicable Option Closing Date, as the case may be, from DLA Piper LLP (US), counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion and negative assurance letter shall be satisfactory in all respects to the Representative.
(h) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, addressed to the Representative and in form and substance satisfactory to the Representative, confirming that they are (i) independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and (ii) in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X under the Act, and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Closing Date and, as to the Option Shares, the applicable Option Closing Date, the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date or the applicable Option Closing Date, as the case may be.
(i) At the Initial Closing and at any Subsequent ClosingDate and, as to the Option Shares, the applicable Option Closing Date, there shall be furnished to the Underwriters Representative a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representative, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the applicable Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gj) On or prior to the Closing Date, the Representative shall have received the executed agreements referred to in Section 4(m).
(k) The Shares shall be qualified for sale in such jurisdictions as the Representative may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the applicable Option Closing Date.
(l) Prior to the Closing Date, the Shares shall have been duly authorized for listing on Nasdaq upon official notice of issuance.
(m) The Company shall have furnished or caused to be furnished to the Underwriters Representative such certificates (including a Secretary’s Certificate and any good standing certificates), in addition to those specifically mentioned herein, as the Underwriters Representative may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the applicable Option Closing Date of any statement in the Offering Registration Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Prospectus or the Final Offering CircularGeneral Disclosure Package, as to the accuracy on such at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentative.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The In addition to the ------------------------------------------------- execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(a) The Prospectus shall have been filed as required by Section 3(a) and (i) No no stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Directors of the Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, in the reasonable judgment of the Underwriters (i) there shall not have occurred been a Material Adverse Changematerial adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor any of its subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, there shall have been no litigation or other proceeding instituted against the Company or any of its subsidiaries or any of their respective officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of the Underwriters, would reasonably be expected to have Company and its subsidiaries taken as a Material Adverse Effectwhole.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(e) On The Representatives shall have received one or more opinions, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, satisfactory in form and substance to counsel for the Underwriters, from Xxxxxxx, Procter & Xxxx, counsel to the Company, to the effect set forth in Exhibit B. ---------
(f) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from O'Melveny & Xxxxx, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives.
(g) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement or incorporated by reference therein. At the Closing Date and, as to the Option Shares, the Option Closing Date, the Underwriters Accountants shall have received furnished to the opinion and 10b-5 negative assurances Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from Xxxxxx Xxxxxx LLPthe Accountants, Washington, D.C., counsel for that nothing has come to their attention during the Company, addressed period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Underwriters, Closing Date and the Option Closing Date which would require any change in their letter dated as of the date hereof if it were required to be dated and delivered at the Closing Date and the Option Closing Date, substantially in the form satisfactory to the Underwriters.
(fh) At Concurrently with the Initial Closing execution and delivery of this Agreement and at any Subsequent Closingthe Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a Representatives an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus (including any documents filed under the Exchange Act and that deemed to each of such person’s knowledge:
i. As be incorporated by reference into the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the Option Closing Date, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectrespect and there has been no document required to be filed under the Exchange Act and the Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the Prospectus that has not been so filed.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityrespects.
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge(i) The Shares shall be qualified for sale in such states as the Representatives may reasonably request, no each such qualification shall be in effect and not subject to any stop order suspending or other proceeding on the qualification of Closing Date and the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse ChangeOption Closing Date.
(gj) The Company shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunderhere under, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentatives.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations including, without limitation, an amendment or supplement to the Prospectus in respect of the Shares shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 P.M., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters did Representatives do not object thereto in good faith, and (v) the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Registration Statement, the Pricing Disclosure Materials Prospectus and the Final Offering CircularProspectus as amended and supplemented, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement, the Prospectus and the Prospectus as amended and supplemented, and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement, the Prospectus and the Prospectus as amended and supplemented, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement, the Prospectus and the Prospectus as amended and supplemented, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentatives, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representatives, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, as if made on such datewith respect to the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) At the Initial Closing and at any Subsequent Closing, there The Representatives shall be furnished to the Underwriters a certificatehave received an opinion, dated the date Closing Date and, with respect to the Option Shares, the Option Closing Date, satisfactory in form and substance to the Representatives and counsel for the Underwriters from Pillsbury Winthrop LLP, counsel to the Company, with respect to the following matters:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of its deliveryjurisdiction of incorporation; has full corporate power and authority to conduct all the activities conducted by it, signed to own or lease all the assets owed or leased by each it and to conduct its business as described in the Registration Statement, the Prospectus and the Prospectus as amended and supplemented; and is qualified to do business and is in good standing as a foreign corporation in Arizona;
(ii) All of the President outstanding shares of capital stock of the Company issued since August 1, 2001 have been duly authorized, validly issued and are fully paid and nonassessable, and, to such counsel’s knowledge, were issued pursuant to an effective registration statement or to exemptions from the registration and qualification requirements of federal and applicable state securities laws, and were not issued in violation of or subject to any preemptive rights in the articles of incorporation or bylaws of the Company or, to such counsel’s knowledge, similar rights;
(iii) The specimen certificate evidencing the Common Stock filed as an exhibit to Form 8-K on April 28, 2004 is in due and proper form under California law, the Shares have been duly authorized and, when issued, paid for and delivered as contemplated by this Agreement, will be validly issued, fully paid and nonassessable; and there exists with respect to any of the Shares or the issue and sale thereof no preemptive right in the articles of incorporation or bylaws of the Company and to our knowledge no similar rights exist with respect to any of the Shares or the issue and sale thereof.
(iv) To such counsel’s knowledge, the Company does not have any subsidiaries.
(v) The Company has 25,000,000 authorized shares of no par value Common Stock and 10,000,000 authorized shares of no par value Preferred Stock, 400,000 shares of which have been designated as Series A Participating Preferred Stock. According to the Company’s transfer agent, 19,404,536 Common shares and 0 Preferred shares were issued and outstanding as of December 31, 2003.
(vi) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened to which the Company is a party or to which any of the properties of the Company is subject that are required to be described in the Registration Statement or the Prospectus and are not so described.
(vii) No consent, approval, authorization or order of, or any filing or declaration with, any U.S., Federal or California court or governmental agency or body is required for the consummation by the Company of the transactions on its part contemplated under this Agreement, except such as have been obtained or made under the Act or the Rules and Regulations and such as may be required under state securities or Blue Sky laws or the by-laws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Shares.
(viii) The Company has full corporate power and authority to enter into this Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(ix) The execution and delivery of this Agreement, the compliance by the Company with all of the terms hereof and the Chief Financial Officer consummation of the transactions contemplated hereby (A) do not contravene any provision of applicable law or the Articles of Incorporation or By-Laws of the Company, (B) to such counsel’s knowledge, will not result in their capacities as officers the creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company pursuant to the terms and provisions of, conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or give any party a right to terminate any of its obligations under, or result in the acceleration of any obligation under, any material indenture, mortgage, deed of trust, voting trust agreement, loan agreement, bond, debenture, note agreement or other evidence of indebtedness, lease, contract or other agreement, document or instrument known to such counsel to which the Company is a party or by which the Company or any of its properties is bound or affected, or (C) violate or conflict with (i) any judgment, ruling, decree or order known to such counsel or (ii) any U.S., Federal or California statute, rule or regulation known to us of any court or other governmental agency or body, applicable to the business or properties of the Company.
(x) To such counsel’s knowledge, there is no document or contract of a character required to be described in form and substance satisfactory to the Underwriters to the effect that each signer has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus or the Prospectus as amended and supplemented or to be filed as an exhibit to the Registration Statement or any document incorporated by reference therein that is not described or filed or incorporated by reference as required, and each description of such contracts and documents that is contained or incorporated by reference in the Registration Statement, Prospectus or the Prospectus as amended and supplemented fairly presents in all material respects the information required under the Act and the Pricing Disclosure MaterialsRules and Regulations.
(xi) The statements relating to legal matters, documents or proceedings under the captions “Management’s Discussion and that Analysis of Financial Condition and Results of Operations – Liquidity and Capital Resources” in the Prospectus as amended and supplemented and the documents incorporated by reference therein, under the captions “Summary of 1995 Employee Stock Option Plan,” “Summary of 1995 Employee Stock Purchase Plan” and “Certain Relationships and Related Transactions” in the Company’s Proxy Statement dated July 11, 2003 and the description of capital stock contained in the Company’s registration statement filed with the Commission pursuant to each of such person’s knowledge:
i. As Section 12 of the date Exchange Act, insofar as the statements constitute a summary of each such certificate, (x) the Offering Statement does not contain any untrue statement of a material fact or omit documents referred to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading matters of law, are accurate summaries and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereinfairly and correctly present, in light of all material respects, the circumstances under which they were madeinformation called for with respect to such documents and matters (provided, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.
ii. Each of the however, that such counsel may rely on representations and warranties of the Company with respect to the factual matters contained in this Agreement were, when originally madesuch statements, and are, at provided further that such counsel shall state that nothing has come to the time attention of such certificate is delivered, counsel that leads them to believe that such representations are not true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
iii. Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changerespects).
(gxii) The Company shall have furnished is not an “investment company” or caused to be furnished to an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company,” as such terms are defined in the Underwriters such certificates, in addition to those specifically mentioned hereinInvestment Company Act of 1940, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwritersamended.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (California Micro Devices Corp)
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities authorities, and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Directors of the Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and the Subsidiary, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor the Subsidiary shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding, in the reasonable judgment of the Underwriters, would reasonably be expected to have a Material Adverse Effect.
(de) Each of the representations and warranties of the Company and the Selling Stockholders contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and the Selling Stockholders and all conditions herein contained to be fulfilled or complied with by the Company and the Selling Stockholders at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representatives shall have received opinions, each dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, and satisfactory in form and substance to counsel for the Underwriters, from Coolxx Xxxward LLP, counsel to the Company, to the effect set forth in Exhibit D and from legal counsel on behalf of each of the Selling Stockholders (in each instance, with such counsel to be reasonably acceptable to counsel for the Underwriters), to the effect set forth in Exhibit E.
(g) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from Pillsbury Madison & Sutro LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be reasonably satisfactory to the Representatives.
(h) On the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at any Subsequent Closingthe Closing Date and the Option Closing Date.
(i) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a Representatives an accurate certificate, dated the date of its delivery, signed by each ,
(i) Each signer of the President and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters to the effect that each signer such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither since the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereinEffective Date, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.;
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.respects;
(iii. ) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.;
iv. To their knowledge(j) At the Closing Date and, no stop order suspending as to the qualification Option Shares, the Option Closing Date, there shall have been furnished to the Representatives an accurate certificate, dated the date of its delivery, signed by the Committee on behalf of each of the Offering Statement Selling Stockholders, in form and substance satisfactory to the Representatives, to the effect that the representations and warranties of each of the Selling Stockholders contained herein are true and correct in all material respects on and as of the date of such certificate as if made on and as of the date of such certificate, and each of the covenants and conditions required herein to be performed or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated complied with by the Commission.
v. Subsequent Selling Stockholders on or prior to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there such certificate has been no Material Adverse Changeduly, timely and fully performed or complied with.
(gk) On or prior to the Closing Date, the Representatives shall have received the executed agreements referred to in Section 5(n).
(l) The Shares shall be qualified for sale in such states as the Representatives may reasonably request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date.
(m) Prior to the Closing Date, the Shares shall have been duly authorized for quotation on the Nasdaq National Market upon official notice of issuance.
(n) The NASD shall have approved the underwriting terms and arrangements and such approval shall not have been withdrawn or limited.
(o) The Company and the Selling Stockholders shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.the
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The respective obligations of each Underwriter hereunder are the several Underwriters to purchase and pay for the Securities will be subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3Province herein, as to the accuracy of the date hereof and as statements of the Closing Date as though then maderepresentatives of the Province made pursuant to the provisions hereof, (2) to the timely performance by the Company Province of its covenants obligations hereunder and obligations hereunder, with regard to the Securities and (3) each of to the following additional conditionsconditions precedent:
(ia) No Prior to the Closing Date, no stop order suspending the qualification effectiveness of the Offering Statement Registration Statement, as amended from time to time, shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (includinghave been instituted or, without limitation, to the Commission), (ii) no order suspending the qualification knowledge of the Offering Statement Province or the qualification or exemption of Representatives, shall be contemplated by the Shares SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending beforeSecurities Act, or threatened or contemplated by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Statement or the Final Offering Circular shall have been filed unless a copy thereof was first submitted with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement.
b) Subsequent to the Underwriters execution of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Underwriters did not object thereto in good faith, Final Prospectus; and the Underwriters Representatives shall have received certificates of received, on the CompanyClosing Date, a certificate dated as of each the Closing Date and signed by the President and Chief Executive Officer Minister of Finance of the CompanyProvince, and the Chief Financial Officer Deputy Minister of Finance of the CompanyProvince or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b).
c) The Representatives shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Justice of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Justice of the Province or another officer of the Ministry of Justice of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of clauses British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type:
(i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities.
(ii) This Agreement and (iii)the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law.
(biii) Since The 2017 Securities, when duly executed, authenticated and delivered to and paid for by the respective dates as Underwriters in accordance with the provisions of which information is given in the Offering Statement, the Pricing Disclosure Materials this Agreement and the Final Offering Circular2017 Fiscal Agency Agreement, in the reasonable judgment will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province; and the 2021 Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters there shall not have occurred a Material Adverse Changein accordance with the provisions of this Agreement and the 2021 Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province.
(civ) Since All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the respective dates as execution and delivery of which information is given in this Agreement and the Offering StatementFiscal Agency Agreement, the Pricing Disclosure Materials issuance of the Securities and the Final Offering Circular, there shall performance by the Province of its obligations hereunder and thereunder have been no litigation or other proceeding instituted against the Company or any of its officers or directors obtained and are in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding, in the reasonable judgment of the Underwriters, would reasonably be expected to have a Material Adverse Effectfull force and effect.
(dv) Each Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada.
(vi) The statements in the Time of Sale Information and Final Prospectus under the captions “Description of Bonds” and “Underwriting”, insofar as such statements constitute a summary of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date legal matters or documents referred to therein, are accurate in all respects for those representations material respects, subject to the qualifications therein stated.
(vii) The statements in the Time of Sale Information and warranties qualified by materiality Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects for those representations and warranties that are not qualified by materiality, as if made on such date, and all covenants and agreements herein contained the legal matters referred to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such Closing Date shall have been duly performed, fulfilled or complied with in all material respectstherein.
(eviii) On Although such counsel is not passing upon and assumes no responsibility for the Closing Dateaccuracy, completeness or fairness of the statements contained in the Registration Statement, the Underwriters shall have received Time of Sale Information and the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLPFinal Prospectus, Washingtonas amended or supplemented, D.C., counsel for the Company, addressed to the Underwriters, dated as based upon such counsel’s participation in conferences with representatives of the Closing DateProvince at which the contents of the Registration Statement, substantially in Time of Sale Information and the form satisfactory Final Prospectus and related matters were discussed, no facts have come to such counsel’s attention which lead such counsel to believe that (A) the Underwriters.
Registration Statement (f) At other than the Initial Closing financial statements and other financial or statistical data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), at any Subsequent Closing, there shall be furnished to the Underwriters a certificate, dated time each part became effective or on the date of its deliverythis Agreement, signed by each of the President and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters to the effect that each signer has carefully examined the Offering Statement, the Final Offering Circular and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
i. As of the date of each such certificate, (x) the Offering Statement does not contain any contained an untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and misleading; (yB) neither that the Final Offering Circular nor Time of Sale Information (other than the Pricing Disclosure Materials financial statements or other financial or statistical data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, contained or contains any an untrue statement of a material fact or omit omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (C) that the Final Prospectus (other than the financial statements or other financial or statistical data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. In rendering such opinion, no opinion need be expressed as to the financial statements and other financial and statistical information contained in or omitted from the Registration Statement, Time of Sale Information and Final Prospectus.
d) The Representatives shall have received an opinion of Farris, Vaughan, Xxxxx & Xxxxxx LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (viii)(but only as of the date of this Agreement as to clause (A) of subdivision (viii)) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Farris, Vaughan, Xxxxx & Xxxxxx LLP may rely upon a certificate (which may be unaudited) of the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to the securities of the Province and the borrowings outstanding on the Closing Date. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Farris, Vaughan, Xxxxx & Xxxxxx LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Justice of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Justice of the Province or another officer of the Ministry of Justice of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon.
e) The Representatives shall have received the opinion of Shearman & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that:
(i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities.
(ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds,” “Description of Debt Securities and Warrants” and “Underwriting”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein.
(iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, and “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein.
(iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 and no event has occurred as a result of which it is necessary to amend misleading; or supplement (C) the Final Offering Circular Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not untrue or misleading been requested to comment) appear on their face to be appropriately responsive in any all material respectrespects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder.
iif) The Representatives shall have received an opinion of Xxxxx Xxxx & Xxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. Each In considering such opinion, Xxxxx Xxxx & Xxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure.
g) The Representatives shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the Company contained Province in this Agreement were, when originally made, and are, at the time such certificate is delivered, are true and correct in correct, that the Province has complied with all respects for those representations agreements and warranties qualified by materiality and in satisfied all material respects for those representations and warranties that are not qualified by materiality.
iii. Each of the covenants required herein conditions on its part to be performed by the Company on or satisfied at or prior to the date of such certificate has been dulyClosing Date, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, that no stop order suspending the qualification effectiveness of the Offering Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the CommissionSEC.
v. Subsequent to the date h) The purchase and sale of the most recent financial statements Securities in accordance with the Offering Statement and in provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the Final Offering CircularUnited States of America, there has been no Material Adverse Changethe Province or the State of New York.
(gi) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company Province shall have furnished to the Representatives and to counsel for the Underwriters an agreement substantially in such further certificates and documents as the form Representatives and such counsel reasonably request.
j) Subsequent to the execution of Exhibit B hereto from each of the Company’s officers, directors, this Agreement and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on prior to the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared Province by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services any nationally recognized statistical rating agency in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) the occurrence of any other calamity or crisis or any change . All such opinions, certificates, letters and documents will be in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed compliance with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance provisions hereof only if they are reasonably satisfactory to the Underwriters containing statements Representatives. The Province will furnish the Representatives with such conformed copies of such opinions, certificates, letters and information documents as the Representatives reasonably request. If any of the type ordinarily included in accountants’ “comfort letters” to underwriters above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to the financial statements and certain financial information contained in the Offering StatementSecurities at, or at any time prior to, the Pricing Disclosure Materials Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and the Final Offering CircularSection 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.
Appears in 1 contract
Samples: Fiscal Agency Agreement (Province of British Columbia)
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(a) The Prospectus shall have been filed as required by Section 3(a) hereof and (i) No no stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, any securities or other governmental authority (including, without limitation, by the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) Commission shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters and the Underwriters did not object thereto in good faith, and the Underwriters shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the Option Closing Date, and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Directors of the Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been, and no development shall have occurred which could reasonably be expected to result in, a material adverse change in the general affairs, capital stock, indebtedness, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the reasonable Registration Statement and the Prospectus and (ii) none of the Company or any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Underwriters there shall not have occurred a Material Adverse Changeany such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, there shall have been no litigation or other proceeding instituted against the Company or any of its Subsidiaries or any of their respective officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of the UnderwritersCompany and its Subsidiaries, would reasonably be expected to have taken as a Material Adverse Effectwhole.
(d) Each of the representations and warranties of the Company and the Selling Shareholders contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and the Selling Shareholders and all conditions herein contained to be fulfilled or complied with by the Company and the Selling Shareholders at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(e) On the Closing Date, the The Underwriters shall have received an opinion, dated the opinion Closing Date and, with respect to the Option Shares, the Option Closing Date, and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., satisfactory in form and substance to counsel for the CompanyUnderwriters, addressed from Freshman, Marantz, Orlanski, Xxxxxx & Xxxxx, counsel to the Company and its Subsidiaries, to the effect set forth in Exhibit C and from Xxxxx Xxxxxx, General Counsel of ICII, to the effect set forth in Exhibit D.
(f) The Underwriters shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, from Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, counsel to the Underwriters, dated as of with respect to the Closing DateRegistration Statement, substantially the Prospectus and this Agreement, which opinion shall be satisfactory in the form satisfactory all respects to the Underwriters.
(fg) On the date of the Prospectus Supplement, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery, addressed to the Underwriters and in form and substance satisfactory to the Underwriters, confirming that they are independent accountants with respect to the Company as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement or incorporated by reference therein. At the Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date and, as to the Option Shares, the Option Closing Date, as the case may be, which would require any change in their letter referred to in the prior sentence, if it were required to be dated and delivered at the Closing Date and the Option Closing Date.
(h) At the Initial Closing and at any Subsequent ClosingDate and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Underwriters, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus (including any documents filed under the Exchange Act and that deemed to each of such person’s knowledge:
i. As be incorporated by reference into the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and, not misleading and as to any Option Shares, the Option Closing Date, since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectrespect and there has been no document required to be filed under the Exchange Act and the Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the Prospectus that has not been so filed.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityrespects.
(iii. ) Each of the covenants required herein to be performed by the Company on or prior to the date delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge(i) At the Closing Date, no stop order suspending there shall have been furnished to the qualification Underwriters an accurate certificate, dated the date of its delivery, signed by an Attorney-in-Fact on behalf of each of the Offering Statement Selling Shareholders, in form and substance satisfactory to the Underwriters, to the effect that the representations and warranties of each of the Selling Shareholders contained herein are true and correct in all material respects on and as of the date of such certificate as if made on and as of the date of such certificate, and each of the covenants and conditions required herein to be performed or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated complied with by the Commission.
v. Subsequent Selling Shareholders on or prior to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there such certificate has been no Material Adverse Changeduly, timely and fully performed or complied with.
(gj) No proceeding by any state securities commission with respect to the Company shall be in effect on the Closing Date or the Option Closing Date.
(k) Prior to the Closing Date, the Shares shall have been duly authorized for listing by the American Stock Exchange upon official notice of issuance.
(l) The Company and the Selling Shareholders shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, as to the accuracy on such at the Closing Date and, as to any Option Shares, the Option Closing Date, of the representations and warranties of the Company and the Selling Shareholders herein, as to the performance by the Company and the Selling Shareholders of its and their obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (Imperial Credit Mortgage Holdings Inc)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made and all Rule 462(b) Registration Statements shall have become effective by 10:00 P.M., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Representatives and counsel for the Underwriters and the Underwriters did Representatives do not object thereto in good faith, and (v) the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Prospectus, and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood, act of terrorism, or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the price set forth in Section 1(a) of this Agreement.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentatives, would reasonably be expected to have a Material Adverse Effectmaterially and adversely affect the business, properties, business prospects, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, as if made on such datewith respect to the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) At the Initial Closing and at any Subsequent Closing, there The Representatives shall be furnished to the Underwriters a certificatehave received an opinion, dated the date of its deliveryClosing Date and, signed by each of with respect to the President and Option Shares, the Chief Financial Officer of the CompanyOption Closing Date, in their capacities as officers of the Company, satisfactory in form and substance satisfactory to the Underwriters Representatives and counsel for the Underwriters, from XXXX|XXXXXXXXXXX LLP, counsel to the Company, with respect to the following matters:
(i) Each of the Company and Conductus, Inc., a Delaware corporation and wholly-owned subsidiary of the Company ("Conductus"), is a corporation duly organized validly existing and in good standing under the laws of the State of Delaware; has full corporate power and authority to conduct all the activities conducted by it, to own or lease all the assets owned or leased by it and to conduct its business as described in the Registration Statement and Prospectus; and is duly qualified to conduct business and is in good standing as a foreign corporation in all jurisdictions in which the nature of the activities conducted by it or the character of the assets owned or leased by it makes such qualification necessary and where the failure to be qualified would have a material and adverse effect that each signer has carefully examined on the business or financial condition of the Company.
(ii) The Shares to be sold by the Company in the Offering Statementhave been duly authorized and, when issued and paid for as contemplated by the Agreement, will be validly issued, fully paid and nonassessable, and are not subject to preemptive or similar rights pursuant to the Certificate or Bylaws or by statute or any agreement filed as an exhibit to the Documents Incorporated by Reference, or to our knowledge, any other agreement by which the Company is bound.
(iii) All of the outstanding shares of capital stock of Conductus have been duly authorized and validly issued and are fully paid and nonassessable, and, to our knowledge, are owned by the Company free and clear of all claims, liens, charges and encumbrances. To our knowledge, there are no securities outstanding that are convertible into or exercisable or exchangeable for capital stock of Conductus.
(iv) The authorized and outstanding capital stock of the Company as of April 3, 2004 is as set forth on page S-22 of the Prospectus in the column titled "Actual" under the caption "Capitalization" (except for subsequent issuances, pursuant to the Agreement or pursuant to reservations, agreements, employee benefit plans or the exercise of convertible securities, options or warrants referred to in the Prospectus). To our knowledge, except as disclosed in or specifically contemplated by the Prospectus, as of April 3, 2004, there were no outstanding options, warrants or other rights calling for the issuance of, and no commitments, plans or arrangements to issue, any shares of capital stock of the Company or any security convertible into or exchangeable or exercisable for capital stock of the Company.
(v) To our knowledge, there are no legal or governmental proceedings pending or threatened to which the Company or any of its Subsidiaries is a party or to which any of their respective properties is subject that are required to be described in the Registration Statement or the Prospectus but are not so described.
(vi) No consent, approval, authorization or order of, or any filing or declaration with, any court or governmental agency or body is required for the consummation by the Company of the transactions contemplated under the Agreement, except such as have been obtained or made under the Act or the Rules and Regulations and such as may be required under state securities or Blue Sky laws or the by-laws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Shares.
(vii) The Company has full corporate power and authority to enter into the Agreement. The Agreement has been duly authorized, executed and delivered by the Company.
(viii) The execution and delivery of the Agreement, the Final Offering Circular compliance by the Company with all its terms and the Pricing Disclosure Materialsconsummation of the Offering (a) do not contravene any provision of the Certificate or By-Laws of the Company or of Conductus, or to our knowledge, any provision of any applicable federal or state law, rule or regulation (other than state securities or Blue Sky laws or regulations to which we give no opinion), and that (b) to our knowledge will not result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company or Conductus pursuant to the terms and provisions of, result in a breach or violation of any of the terms or provisions of, or constitute a default under, or give any party a right to terminate any of its obligations under, or result in the acceleration of any obligation under, any indenture, mortgage, deed of trust, voting trust agreement, loan agreement, bond, debenture, note agreement or other evidence of indebtedness, lease, contract or other agreement or instrument which is listed as an exhibit to the Documents Incorporated by Reference or, to which the Company or Conductus is a party or violate or conflict with any judgment, ruling, decree or order known to us.
(ix) To our knowledge, (i) there is no document or contract of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed or incorporated by reference as required, and (ii) each description of such person’s knowledge:contracts and documents that is contained in the Registration Statement and Prospectus fairly presents in all material respects the information required under the Act and the Rules and Regulations.
i. As of the date of each such certificate, (x) The statements on page 17 of the Offering Prospectus under the caption "Description of Common and Preferred Stock" insofar as the statements constitute a summary of documents referred to therein or matters of law, are accurate summaries and fairly and correctly present, in all material respects, the information called for with respect to such documents and matters.
(xi) The Company is not an "investment company" or an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended.
(xii) The Firm Shares and Option Shares to be sold by the Company have been duly authorized for listing on the Nasdaq National Market, subject to official notice of issuance.
(xiii) To our knowledge, except as stated in the Prospectus or in the Agreement, no holder of securities of the Company has rights, which have not been waived or satisfied, to require the Company to register with the Commission shares of Common Stock or other securities, as part of the Offering.
(xiv) The Registration Statement does not contain has become effective under the Act, and to our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or is pending, threatened or contemplated.
(xv) The Registration Statement and the Prospectus comply as to form in all material respects with the requirements of the Act and the Rules and Regulations (other than the financial statements, schedules and other financial and statistical data contained in or incorporated by reference into the Registration Statement or the Prospectus, as to which we express no opinion).
(xvi) Such counsel has participated in the preparation of the Registration Statement and Prospectus and has no reason to believe that, as of the Effective Date the Registration Statement, or any amendment or supplement thereto, (other than the financial statements, schedules and other financial data contained therein, as to which such counsel need express no opinion) contained any untrue statement of a material fact or omit 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, or any amendment or supplement thereto, as of its date and (y) neither the Final Offering Circular nor Closing Date and, if later, the Pricing Disclosure Materials Option Closing Date, contained or contains any untrue statement of a material fact or omit omitted or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than the financial statements, schedules and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.
ii. Each of the representations and warranties of the Company other financial data contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
iii. Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.
(g) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circulartherein, as to the accuracy on which such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriterscounsel need express no opinion).
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (Superconductor Technologies Inc)
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption registration of the Shares Units under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters and the Underwriters did not object thereto in good faith, and the Underwriters shall will have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date, as applicable, and signed by the President and Chief Executive Officer Officer, President or a Vice President of the Company, Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering Circular, in the reasonable judgment of the Underwriters Prospectus (i) there shall not have occurred been a Material Adverse Changematerial adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, and in your judgment makes it impracticable or inadvisable to consummate the sale and delivery of the Units by the Underwriters in accordance with the terms hereof and thereto.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, there shall have been no litigation or other proceeding instituted against the Company or any of its Subsidiaries or any of their respective officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of the Underwriters, would reasonably be expected to have Company and its Subsidiaries taken as a Material Adverse Effectwhole.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Units, at the Option Closing Date as if made on such dateat the Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Units, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(e) On The Representatives will have received opinions, each dated the Closing Date and, with respect to the Option Units, the Option Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., satisfactory in form and substance to counsel for the Company, addressed to the Underwriters, dated as of the Closing Datefrom (i) Xxxxx & Xxxxxxx, substantially in the form satisfactory counsel to the UnderwritersCompany, to the effect set forth in Exhibit B, (ii) Xxxxxxxx, Byrd, Richeson, Xxxxxxxx and Xxxxxxxx, special Kansas counsel to the Company, and (iii) Xxxxxx & Xxxxxx, special Texas counsel to the Company.
(f) The Representatives will have received an opinion, dated the Closing Date and the Option Closing Date, from Xxxxx Day, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives.
(g) On the date of the Prospectus, the Accountant shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, containing statements and information of the type ordinary include in accountant's "comfort letters" to underwriters, delivered according to Statement of Accounting Standards No. 72 (or any successor bulletin), with respect to the audited and unaudited financial statements and certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement and the Prospectus. At the Initial Closing Date and, as to the Option Units, the Option Closing Date, the Accountant shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountant, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date and the Option Closing Date that would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at any Subsequent Closingthe Closing Date and the Option Closing Date.
(h) At the Closing Date and, as to the Option Units, the Option Closing Date, there shall be furnished to the Underwriters a each Underwriter an accurate certificate, dated the date of its delivery, signed by each of the Chief Executive Officer, President or a Vice President and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Underwriters, to the effect that that:
(i) each signer of such certificate has carefully examined reviewed the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus (including any documents filed under the Exchange Act and that deemed to each of such person’s knowledge:
i. As be incorporated by reference into the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither since the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereinEffective Date, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.respect and there has been no document required to be filed under the Exchange Act and the Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the Prospectus that has not been so filed;
(ii. Each ) each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.respects; and
(iii. Each ) each of the covenants required herein to be performed by the Company on or prior to the date delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge(i) On or prior to the Closing Date, no the Representatives will have received executed Lock-Up Letter Agreements, in the form of Exhibit C hereto, from the Company's directors and executive officers.
(j) The Units will be qualified for sale in such states as the Underwriters may reasonably request, each such qualification shall be in effect and not subject to any stop order suspending or other proceeding on the qualification of Closing Date or the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the CommissionOption Closing Date.
v. (k) Subsequent to the date execution and delivery of this Agreement and prior to the Closing Date or the Option Closing Date, as the case may be, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the most recent financial statements possible change, in the Offering Statement and in rating accorded any of the Final Offering Circular, there has been no Material Adverse ChangeCompany's securities by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Act.
(gl) The Corporate Units shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance.
(m) The Company shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriterseach Underwriter.
(hn) On At the Closing Date, (i) the Units shall be rated at least Baa2 and A- by Xxxxx'x Investors Service, Inc. ("Moody's"), and Standard & Poor's Ratings Group, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P"), respectively, and the Company shall have delivered to the Underwriters a letter from each such rating agency, or other evidence satisfactory to the Underwriters, confirming that the Units have such ratings, and (ii) neither Moody's nor S&P shall have, since the date of this Agreement, downgraded or publicly announced that it has under surveillance or review, with possible negative implications, its ratings of the Units or any securities of the Company which are of the same class as the Units, or of the financial condition of the Company. If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any time on or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably requestand, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of Option Units, at any time prior to the plan of distributionOption Closing Date, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there which termination shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally be without liability on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) the occurrence part of any party to any other calamity or crisis or any change in financialparty, political or economic conditions in the United States or elsewhereexcept that Section 4, if the effect of any Section 6, Section 8 and Section 11 shall at all times be effective and shall survive such event specified in clause (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circulartermination.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters did Representatives do not object thereto in good faith, and (v) the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the applicable Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentatives, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representatives, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(de) Each of the representations and warranties of the Company and the Selling Stockholder contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option Shares, at the applicable Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company or the Selling Stockholder and all conditions contained herein contained to be fulfilled or complied with by the Company or the Selling Stockholder at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representatives shall have received an opinion and a negative assurance letter, dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, satisfactory in form and substance to the Representatives and counsel for the Underwriters from Xxxxxxx & Xxxx, S.C., counsel to the Company.
(g) The representatives shall have received an opinion and negative assurance letter, dated the Closing Date or the applicable Option Closing Date, as the case may be, from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion and negative assurance letter shall be satisfactory in all respects to the Representatives.
(h) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Initial Closing Date and, as to the Option Shares, the applicable Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at any Subsequent Closingthe Closing Date or the applicable Option Closing Date, as the case may be.
(i) At the Closing Date and, as to the Option Shares, the applicable Option Closing Date, there shall be furnished to the Underwriters Representatives a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the applicable Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied withsatisfied or fulfilled.
iv. To their knowledge(j) At the Option Closing Date, no stop order suspending there shall be furnished to the qualification Representatives (i) a certificate, dated the date of its delivery, signed by the Selling Stockholder, in form and substance satisfactory to the Representatives, to the effect that the representations and warranties of the Offering Statement Selling Stockholder contained herein are true and correct in all material respects on and as of the date of such certificate as if made on and as of the date of such certificate, and each of the covenants and conditions required herein to be performed or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated complied with by the Commission.
v. Subsequent Selling Stockholder on or prior to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there such certificate has been no Material Adverse Changeduly, timely and fully performed or complied with and (ii) an opinion, dated the Option Closing Date, satisfactory in form and substance to the Representatives and counsel for the Underwriters from Xxxxxxx & Xxxx, S.C., counsel to the Selling Stockholder.
(gk) On or prior to the Closing Date, the Representatives shall have received the executed agreements referred to in Section 55(n).
(l) The Shares shall be qualified for sale in such jurisdictions as the Representatives may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the applicable Option Closing Date.
(m) The Company and the Selling Stockholder shall have furnished or caused to be furnished to the Underwriters Representatives such certificatesfurther certificates and documents, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the applicable Option Closing Date of any statement in the Offering Registration Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Prospectus or the Final Offering CircularGeneral Disclosure Package, as to the accuracy on such at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company and the Selling Stockholder herein, as to the performance by the Company and the Selling Stockholder of its their respective obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentatives.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened by the Commission or contemplated by, the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer of the Company, Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been, and no development shall have occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor any of its Subsidiaries shall have sustained any loss or interference with its business or properties material to the Company and its Subsidiaries taken as a whole from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or from any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as contemplated by the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its Subsidiaries or any of their respective officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of the Underwriters, would reasonably be expected to have Company and its Subsidiaries taken as a Material Adverse Effectwhole.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, and satisfactory in form and substance to counsel for the Underwriters, from Xxxxxxxxx & Xxxxxxxxx L.L.P., counsel to the Company, to the effect set forth in Exhibit D.
(g) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives.
(h) On the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company as required by the Act and the Rules and Regulations and, in the case of KPMG Peat Marwick LLP, with respect to the financial and other statistical and numerical information contained in the Registration Statement. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, KPMG Peat Marwick LLP shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in their letter, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at any Subsequent Closingthe Closing Date and the Option Closing Date.
(i) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a Representatives an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither since the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereinEffective Date, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.;
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.respects;
(iii. ) Each of the covenants required herein to be performed by the Company on or prior to the date delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery date of such certificate has been duly, timely and fully complied with.; and
(iv. To their knowledge) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) there has not been, and no stop order suspending development has occurred which could reasonably be expected to result in, a material adverse change in the qualification general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Offering Statement Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of any part thereof has been issued and no proceedings for that purpose have been instituted business, in each case other than as set forth in or are contemplated by the Commission.
v. Subsequent Registration Statement and the Prospectus and (B) neither the Company nor any of its Subsidiaries has sustained any loss or interference with its business or properties material to the date of the most recent financial statements Company and its Subsidiaries taken as a whole from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or from any court or legislative or other governmental action, order or decree, which is not set forth in the Offering Registration Statement and in the Final Offering Circular, there has been no Material Adverse ChangeProspectus.
(gj) On or prior to the Closing Date, the Representatives shall have received the executed agreements referred to in Section 4(n).
(k) The Shares shall be qualified for sale in such states as the Representatives may reasonably request each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date.
(l) Prior to the Closing Date, the Shares shall have been duly authorized for listing by the New York Stock Exchange upon official notice of issuance.
(m) The National Association of Securities Dealers, Inc. shall have approved the underwriting terms and arrangements and such approval shall not have been withdrawn or limited.
(n) The Company shall have furnished or caused to be furnished to the Underwriters he Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering Circular, Prospectus as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentatives.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (Advanced Communications Group Inc/De/)
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof hereof, no 19 19 amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date, as the case may be, and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Directors of the Company and the Chief Financial Officer Vice President of Finance of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been, and no development shall have occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, properties, management, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental or regulatory action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the reasonable judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, to the Company's knowledge, there shall have been no litigation or other proceeding instituted or threatened in writing against the Company or any of its Subsidiaries or any of their respective officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, governmental or industry regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in the reasonable judgment of the Underwriters, decision or finding would reasonably be expected to have materially and adversely affect the business, properties, financial condition or results of operations of the Company and its Subsidiaries taken as a Material Adverse Effectwhole.
(de) Each of the representations and warranties of the Company and the Selling Stockholders contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and the Selling Stockholders and all conditions herein contained to be fulfilled or complied with by the Company and the Selling Stockholders at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with. 20 20
(f) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, satisfactory in form and substance to counsel for the Underwriters, from Gundxxxxx Xxxtxxx Xxxxxx Xxxlxxxxxx Xxxxxxxx & Xachxxxxx, XXP, counsel to the Company, to the effect set forth in Exhibit D.
(g) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from Morrxxxx & Xoerxxxx XXX, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all material respectsrespects to the Representatives.
(eh) The Representatives shall have received an opinion, dated the Option Closing Date, of Hutcxxxx, Xxeexxx & Xittxxx, X.C., counsel for the Selling Stockholders, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, to the effect set forth in Exhibit E.
(i) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from each of (i) Hogax & Xartxxx, X.L.P., FDA special counsel to the Company, to the effect set forth in Exhibit F, (ii) Lowexxxxxx xxx Sandler, New Jersey environmental special counsel to the Company, to the effect set forth in Exhibit G, and (iii) Akin, Gump, Strauss, Hauex xxx Feld, XXC special counsel to the Company, to the effect set forth in Exhibit H, which opinions shall be satisfactory in all respects to the Representatives.
(j) On the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement. At the Closing Date and, as to the Option Shares, the Option Closing Date, the Underwriters Accountants shall have received furnished to the opinion and 10b-5 negative assurances Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from Xxxxxx Xxxxxx LLPthe Accountants, Washington, D.C., counsel for that nothing has come to their attention during the Company, addressed period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Underwriters, Closing Date and the Option Closing Date which would require any change in their letter dated as the date of the Prospectus, if it were required to be dated and delivered at the Closing Date and the Option Closing Date, substantially in the form satisfactory to the Underwriters.
(fk) At the Initial Closing and at any Subsequent ClosingDate and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a Representatives an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer Vice President of Finance of the Company, in their capacities as officers on behalf of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated 21 21 therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither since the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereinEffective Date, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.;
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.respects;
(iii. ) Each of the covenants required herein to be performed by the Company on or prior to the date delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery date of such certificate has been duly, timely and fully complied with.with or waived by the Representatives; and
(iv. To their knowledge) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, no stop order suspending the qualification of the Offering Statement or of any part thereof (A) there has been issued not been, and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent development has occurred which could reasonably be expected to the date of the most recent financial statements result in, a material adverse change in the Offering Statement and in the Final Offering Circulargeneral affairs, there has been no Material Adverse Change.
(g) The Company shall have furnished business, properties, management, financial condition or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and results of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing operations of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the Subsidiaries in their respective jurisdiction ordinary course of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably requestbusiness, in each case other than as set forth in writing or contemplated by the Registration Statement and the Prospectus and (B) neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness court or reasonableness of the plan of distribution, legislative or other arrangements of governmental action, order or decree, which is not set forth in the transactions, contemplated herebyRegistration Statement and the Prospectus; and such other matters as the Representatives may reasonably request.
(l) On or after prior to the Applicable Time there Closing Date, the Representatives shall not have occurred any of received the following: (a) a suspension or material limitation executed agreements referred to in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering CircularSection 5(n).
(m) The Shares shall be qualified for sale in such states and other jurisdictions as the Representatives may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date.
(n) Prior to the Closing Date, the Shares shall have been duly authorized for listing by the Nasdaq National Market upon official notice of issuance.
(o) The National Association of Securities Dealers, Inc. shall have approved the underwriting terms and arrangements and such approval shall not have been withdrawn or limited.
(p) At the Closing Date and at any Subsequent Closingor the Option Closing Date, as the Accountants case may be, there shall have been furnished to the Underwriters a letterRepresentatives an accurate certificate, dated the date of its delivery (delivery, signed by or on behalf of each of the “Comfort Letter”)22 22 Selling Stockholders, addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters containing statements Representatives, to the effect that the representations and information warranties of each of the type ordinarily included Selling Stockholders contained herein are true and correct in accountants’ “comfort letters” all material respects on and as of the date of such certificate as if made on and as of the date of such certificate, and each of the covenants and conditions required herein to underwriters be performed or complied with respect by the Selling Stockholders on or prior to the financial statements date of such certificate has been duly, timely and certain financial information contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circularfully performed or complied with.
Appears in 1 contract
Samples: Underwriting Agreement (Sterigenics International Inc)
Conditions of the Obligations of the Underwriters. The In ------------------------------------------------- addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by Xxxx Xxxxx Xxxx Xxxxxx, Incorporated not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by Xxxx Xxxxx Xxxx Xxxxxx, Incorporated and all filings required by Rule 424 and Rule 430A of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then Regulations shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or, to the knowledge of the Company or the Underwriters, threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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 beforebefore or, to the knowledge of the Company or the Underwriters, threatened or contemplated by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of by the Commission or the authorities of any such authorities jurisdiction, and (iviii) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Xxxx Xxxxx Xxxx Xxxxxx, Incorporated and the Underwriters Xxxx Xxxxx Xxxx Xxxxxx, Incorporated did not object thereto in good faith, and the Underwriters Xxxx Xxxxx Xxxx Xxxxxx, Incorporated shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer of the Company, Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (iii) and (iiiii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, there shall not have been, and no development shall have occurred which could reasonably be expected to result in, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus, and in the judgment of Xxxx Xxxxx Xxxx Xxxxxx, Incorporated any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the effectiveness of the Registration Statement, there shall have been no litigation or other proceeding instituted against the Company or its Subsidiary or any of its their respective officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding could result in the reasonable judgment of the Underwriters, would reasonably be expected to have a Material Adverse Effect.
(de) Each of the representations and warranties of the Company and Irex contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and Irex and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representatives shall have received opinions, each dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, with such qualifications and limitations which are customary, from Dechert Price & Xxxxxx, counsel to the Company and Irex, substantially to the effect set forth in Exhibits D-1 and D-2, and from Xxxxx X. Xxxxxxx, Esq., General Counsel to Irex and the Company, substantially to the effect set forth in Exhibit D-3.
(g) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from Stradley, Ronon, Xxxxxxx & Xxxxx, LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to Xxxx Xxxxx Xxxx Xxxxxx, Incorporated.
(h) On the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to Xxxx Xxxxx Xxxx Xxxxxx, Incorporated, confirming that they are independent accountants with respect to the Company as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at any Subsequent Closingthe Closing Date and the Option Closing Date.
(i) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a Representatives an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Xxxx Xxxxx Xxxx Xxxxxx, Incorporated, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither since the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereinEffective Date, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.respects;
(iii. ) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.; and
(iv. To their knowledge) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, no stop order suspending the qualification of the Offering Statement or of any part thereof there has been issued not been, and no proceedings for that purpose have been instituted development has occurred which could reasonably be expected to result in, a Material Adverse Effect, whether or are not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the CommissionRegistration Statement and the Prospectus.
v. Subsequent (v) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall have been furnished to the Representatives an accurate certificate, dated the date of its delivery, signed by Irex, in form and substance satisfactory to Xxxx Xxxxx Xxxx Xxxxxx, Incorporated, to the effect that the representations and warranties of Irex contained herein are true and correct in all material respects on and as of the date of such certificate as if made on and as of the date of such certificate, and each of the covenants and conditions required herein to be performed or complied with by Irex on or prior to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there such certificate has been no Material Adverse Changeduly, timely and fully performed or complied with.
(gj) On or prior to the Closing Date, Xxxx Xxxxx Xxxx Xxxxxx, Incorporated shall have received the executed agreements referred to in Section 4(n).
(k) The Shares shall be qualified for sale in such states as Xxxx Xxxxx Xxxx Xxxxxx, Incorporated may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date.
(l) Prior to the Closing Date, the Shares shall have been duly authorized for quotation on the Nasdaq National Market.
(m) The NASD shall have approved the underwriting terms and arrangements and such approval shall not have been withdrawn or limited.
(n) The Company and Irex shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering Circular, Prospectus as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company and Irex herein, as to the performance by the Company and Irex of its their respective obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentatives.
(ho) On or prior to The Distribution and the date hereof, the Company Dividend shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, been effected and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement no proceeding shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished pending or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection threatened with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials Distribution and the Final Offering CircularDividend.
Appears in 1 contract
Samples: Underwriting Agreement (Specialty Products & Insulation Co)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430B of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering ADS Registration Statement, the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering ADS Registration Statement, the Registration Statement or the qualification or exemption registration of the Shares ADSs under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement ADS Registration Statement, the Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters did Representative does not object thereto in good faith, and (v) the Underwriters shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the applicable Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Offered ADSs by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentative, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Offered ADSs by the Underwriters at the initial public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option ADSs, at the applicable Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option ADSs, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Underwriters shall have received an opinion, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters from Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, U.S. counsel to the Company and Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx (Europe) LLP, French counsel to the Company. In addition, such U.S. counsel shall state that in connection with such counsel’s participation in the preparation of the Registration Statement, the Prospectus and the General Disclosure Package, such counsel has no reason to believe (i) that, as of the Effective Date, the Registration Statement or any further amendment thereto (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no belief) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) that the General Disclosure Package (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no belief), as of the Applicable Time contained any 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, or (iii) that the Prospectus, or any further amendment or supplement thereto, as of its date and the Closing Date and, if later, the applicable Option Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no belief).
(g) The Underwriters shall have received an opinion, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters, of Xxxxxxx & Xxxxxx LLP, special counsel for the Company with respect to patents and proprietary rights, addressed to the Representative on behalf of itself and the several Underwriters.
(h) The Underwriters shall have received an opinion, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters, of Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel for the Depositary, addressed to the addressed to the Representative on behalf of itself and the several Underwriters.
(i) The Underwriters shall have received a negative assurance letter, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, as the case may be, from Xxxxxxx Procter LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which negative assurance letter shall be satisfactory in all respects to the Representative.
(j) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery, addressed to the Representative on behalf of itself and the several Underwriters and in form and substance satisfactory to the Representative, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Initial Closing Date and, as to the Option ADSs, the applicable Option Closing Date, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at any Subsequent Closingthe Closing Date or the applicable Option Closing Date, as the case may be.
(k) At the Closing Date and, as to the Option ADSs, the applicable Option Closing Date, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representative, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the applicable Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gl) Concurrently with the execution and delivery of this Agreement and at the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, there shall have been furnished to the Underwriters a certificate, dated the delivery date, and addressed to the Representative on behalf of itself and the several Underwriters, signed by the Chief Financial Officer of the Company, in form and substance satisfactory to the Representative.
(m) On or prior to the Closing Date, the Underwriters shall have received the executed agreements referred to in Section 4(n).
(n) The Deposit Agreement shall be in full force and effect and the Company and the Depositary shall have taken all action necessary to permit the deposit of the Ordinary Shares and the issuance of the Offered ADSs in accordance with the Deposit Agreement.
(o) The Depositary shall have furnished or caused to be furnished to the Underwriters a certificate satisfactory to the Representative of one of its authorized officers evidencing the deposit with the custodian of the Ordinary Shares against issuance of the ADRs evidencing the Offered ADSs, the execution, issuance, countersignature (if applicable) and delivery of the ADRs evidencing the Offered ADSs pursuant to the Deposit Agreement and such other matters related thereto as the Representative reasonably requests.
(p) The Offered ADSs shall be qualified for sale in such jurisdictions as the Underwriters may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the applicable Option Closing Date.
(q) Prior to the Closing Date, the Offered ADSs and the Underlying Shares shall have been duly authorized for listing on the NYSE upon official notice of issuance.
(r) On the Closing Date, there shall have been furnished to the Underwriters a certificate, dated the Closing Date, and addressed to the Representative on behalf of itself and the several Underwriters, signed by the Chief Financial Officer of the Company, in form and substance reasonably satisfactory to the Representative.
(s) The Company shall have furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters Representative may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the applicable Option Closing Date of any statement in the Offering Registration Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Prospectus or the Final Offering CircularGeneral Disclosure Package, as to the accuracy on such at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter the Underwriters hereunder are subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(ia) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (iib) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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 threatened or contemplated by, any securities or other governmental authority (including, without limitation, the Commission), (iiic) any request for additional information on the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (ivd) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, any Issuer Free Writing Prospectus or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters and the Underwriters did not object thereto in good faith, and the Underwriters shall have received certificates of the Company, dated as of each the Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (iia), (b) and (iiic).
(bii) Since the respective dates as of which information is given in the Offering Registration Statement, the Pricing Disclosure Materials and the Final Offering CircularProspectus, (a) there shall not have been a Material Adverse Change, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement, the Pricing Disclosure Materials and the Final Prospectus and (b) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement, the Pricing Disclosure Materials and the Final Prospectus, if in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changeany such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares to Investors as contemplated hereby.
(ciii) Since the respective dates as of which information is given in the Offering Registration Statement, the Pricing Disclosure Materials and the Final Offering CircularProspectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding, in the reasonable judgment of the Underwriters, would reasonably be expected to have a Material Adverse Effect.
(div) Each of the representations and warranties of the Company contained herein shall be true and correct as of each at the Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(ev) On The Underwriters shall have received an opinion (covering, among other things, IP matters) and 10b-5 statement, dated the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx of Xxxxxxx & Xxxxx LLP, Washington, D.C., as counsel for to the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form of Exhibit B hereto. The Underwriters shall have received an opinion, dated the Closing Date, of Stikeman Elliott LLP, as Canadian counsel to the Company, in form and substance reasonably satisfactory to the Underwriters.
(fvi) The Underwriters shall have received an opinion and 10b-5 statement, dated the Closing Date, of Xxxxxxxx & Xxxxxxxx LLP, as counsel to the Underwriters, substantially in the form of Exhibit C hereto.
(vii) The Underwriters shall have received an opinion, dated the Closing Date, of Blakes LLP, as Canadian counsel to the Underwriters, in form and substance reasonably satisfactory to the Underwriters.
(viii) At the Initial Closing Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and at any Subsequent in form and substance reasonably satisfactory to the Underwriters 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 contained in the Registration Statement, the Pricing Disclosure Materials and the Final Prospectus.
(ix) At the Closing, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters to the effect that each signer has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
i. (a) (1) As of the date of each such certificate, (x) the Offering Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular Prospectus nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (2) no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.
ii. (b) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
iii. (c) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no (d) No stop order suspending the qualification effectiveness of the Offering Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission; the Rule 462(b) Registration Statement (if any) satisfying the requirements of Rules 462(b)(1) and (3) was timely filed pursuant to Rule 462(b), including payment of the applicable filing fee.
v. (e) Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering CircularProspectus, there has been no Material Adverse Change.
(gx) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any the Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus, as to the accuracy on such the Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(hxi) On or prior to the date hereof, the Company The Underwriters shall have furnished received the lock up letters referred to the Underwriters an agreement in Section 4(o) hereof substantially in the form of Exhibit B hereto A from each director, officer and stockholder of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be Company named in full force and effect on the Closing DateSchedule 5 hereto.
(ixii) The Shares have been approved for listing quotation upon notice of issuance on the NASDAQNasdaq.
(jxiii) The Company shall have furnished or caused to be furnished to the Underwriters on each the Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(kxiv) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(lxv) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQNasdaq; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the initial public offering or the delivery of the Shares being delivered on any the Closing Date on the terms and in the manner contemplated in the Final Offering CircularProspectus.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives. All filings required by Rule 424, Rule 430A and Rule 430C of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Preliminary Prospectus or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters did Representatives do not object thereto in good faith, and (v) the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentatives, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, as if made on such datewith respect to the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, satisfactory in form and substance to the Representatives and counsel for the Underwriters from Winthrop & Weinstine, P.A., counsel to the Company.
(g) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from Faegre & Xxxxxx LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives.
(h) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained in the Registration Statement. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date and the Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at any Subsequent Closingthe Closing Date and the Option Closing Date.
(i) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters Representatives a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the Pricing General Disclosure Materials, Package and that to each of such person’s knowledge:
i. As (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialitycorrect.
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gj) On or prior to the Closing Date, the Representatives shall have received the executed agreements referred to in Section 4(n).
(k) The Shares shall be qualified for sale in such jurisdictions as the Representatives may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the Option Closing Date.
(l) Prior to the Closing Date, the Shares shall have been duly authorized for listing on the Nasdaq upon official notice of issuance.
(m) The Company shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the Option Closing Date of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus, as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentatives.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(kn) FINRA shall not have raised any objection with respect no objections to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the underwriting terms and in the manner contemplated in the Final Offering Circulararrangements.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities authorities, and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Directors of the Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and the Subsidiary, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor the Subsidiary shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or the Subsidiary or any of its their respective officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of the Underwriters, would reasonably be expected to have Company and the Subsidiary taken as a Material Adverse Effectwhole.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representatives shall have received opinions, each dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, and satisfactory in form and substance to counsel for the Underwriters, from Coolxx Xxxward Castxx Xxxdxxxxx & Xatux, xxunsel to the Company, to the effect set forth in Exhibit C.
(g) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from Pillsbury Madison & Sutro LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be reasonably satisfactory to the Representatives.
(h) On the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at any Subsequent Closingthe Closing Date and the Option Closing Date.
(i) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a Representatives an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither since the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereinEffective Date, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respect.
ii. Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
iii. Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.
(g) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have or any notice objecting to its use has been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (includinghave been instituted or, without limitationto the Company’s knowledge, the Commission), threatened; (ii) no order suspending the qualification of the Offering Statement or the qualification or exemption 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 threatened or contemplated by, any securities or other governmental authority (including, without limitation, the Commission), (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities authorities; and (iviii) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters did Representatives do not object thereto in good faith, and the Underwriters shall have received certificates of the Company, dated as of each Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentatives, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representatives, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option Shares, at the applicable Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(ef) On The Representatives shall have received an opinion and negative assurance letter, each dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx Xxxxxxx Coie LLP, Washington, D.C., counsel for to the Company, addressed in form and substance previously agreed to the Underwritersbetween Xxxxxxx Coie LLP and DLA Piper LLP (US), dated as of the Closing Date, substantially in the form satisfactory counsel to the Underwriters.
(fg) The Representatives shall have received an opinion dated the Closing Date or the applicable Option Closing Date, as the case may be, from DLA Piper LLP (US), counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be reasonably satisfactory to the Representatives.
(h) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance reasonably satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Closing Date and, as to the Option Shares, the applicable Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date or the applicable Option Closing Date, as the case may be.
(i) At the Initial Closing and at any Subsequent ClosingDate and, as to the Option Shares, the applicable Option Closing Date, there shall be furnished to the Underwriters Representatives a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Companysuch, in form and substance reasonably satisfactory to the Underwriters Representatives, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the applicable Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(g) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(hj) On or prior to the date hereofClosing Date, the Representatives shall have received the executed agreements referred to in Section 4(m).
(k) The Shares shall be qualified for sale in such jurisdictions as the Representatives may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the applicable Option Closing Date.
(l) On the Closing Date, or the Option Closing Date, as applicable, the Company shall have furnished to the Underwriters an agreement substantially in Representatives a certificate signed by the form Company’s secretary including copies of Exhibit B hereto from each all resolutions of the Company’s officers, directorsBoard of Directors or committees thereof relating to the Registration Statement and the offer and sale of the Shares, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares articles of the Company’s Common Stock, incorporation and each such agreement shall be by-laws as amended and in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430B of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering ADS Registration Statement, the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering ADS Registration Statement, the Registration Statement or the qualification or exemption registration of the Shares ADSs under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement ADS Registration Statement, the Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters did Representative does not object thereto in good faith, and (v) the Underwriters shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the applicable Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Offered ADSs by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentative, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Offered ADSs by the Underwriters at the initial public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option ADSs, at the applicable Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option ADSs, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Underwriters shall have received an opinion, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters from Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, U.S. counsel to the Company and Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx (Europe) LLP, French counsel to the Company. In addition, such U.S. counsel shall state that in connection with such counsel’s participation in the preparation of the Registration Statement, the Prospectus and the General Disclosure Package, such counsel has no reason to believe (i) that, as of the Effective Date, the Registration Statement or any further amendment thereto (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no belief) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) that the General Disclosure Package (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no belief), as of the Applicable Time contained any 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, or (iii) that the Prospectus, or any further amendment or supplement thereto, as of its date and the Closing Date and, if later, the applicable Option Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than the financial statements, schedules and other financial data contained or incorporated by reference therein, as to which such counsel need express no belief).
(g) The Underwriters shall have received an opinion, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters, of Xxxxxxx & Xxxxxx LLP, special counsel for the Company with respect to patents and proprietary rights, addressed to the Representative on behalf of itself and the several Underwriters.
(h) The Underwriters shall have received an opinion, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters, of Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel for the Depositary, addressed to the addressed to the Representative on behalf of itself and the several Underwriters.
(i) The Underwriters shall have received a negative assurance letter, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, as the case may be, from The NBD Group, Inc., counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which negative assurance letter shall be satisfactory in all respects to the Representative.
(j) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery, addressed to the Representative on behalf of itself and the several Underwriters and in form and substance satisfactory to the Representative, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Initial Closing Date and, as to the Option ADSs, the applicable Option Closing Date, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at any Subsequent Closingthe Closing Date or the applicable Option Closing Date, as the case may be.
(k) At the Closing Date and, as to the Option ADSs, the applicable Option Closing Date, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by the Chief Financial Officer of the Company with respect to certain financial data contained in the Registration Statement, the General Disclosure Package, the Prospectus and the roadshow presentation, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative.
(l) At the Closing Date and, as to the Option ADSs, the applicable Option Closing Date, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representative, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the applicable Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gm) Concurrently with the execution and delivery of this Agreement and at the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, there shall have been furnished to the Underwriters a certificate, dated the delivery date signed by the Chief Financial Officer of the Company, in form and substance satisfactory to the Representative.
(n) On or prior to the Closing Date, the Underwriters shall have received the executed agreements referred to in Section 4(n).
(o) The Deposit Agreement shall be in full force and effect and the Company and the Depositary shall have taken all action necessary to permit the deposit of the Ordinary Shares and the issuance of the Offered ADSs in accordance with the Deposit Agreement.
(p) The Depositary shall have furnished or caused to be furnished to the Underwriters a certificate satisfactory to the Representative of one of its authorized officers evidencing the deposit with the custodian of the Ordinary Shares against issuance of the ADRs evidencing the Offered ADSs, the execution, issuance, countersignature (if applicable) and delivery of the ADRs evidencing the Offered ADSs pursuant to the Deposit Agreement and such other matters related thereto as the Representative reasonably requests.
(q) The Offered ADSs shall be qualified for sale in such jurisdictions as the Underwriters may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the applicable Option Closing Date.
(r) Prior to the Closing Date, the Offered ADSs and the Underlying Shares shall have been duly authorized for listing on the NYSE upon official notice of issuance.
(s) The Company shall have furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters Representative may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the applicable Option Closing Date of any statement in the Offering Registration Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Prospectus or the Final Offering CircularGeneral Disclosure Package, as to the accuracy on such at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened by the Commission or contemplated by, the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Directors of the Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have been, and no development shall have occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other legal or governmental proceeding instituted against the Company or any of its Subsidiaries or any of their respective officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedinglegal or governmental proceeding an unfavorable ruling, in decision or finding would materially and adversely affect the reasonable judgment business, properties, business prospects, condition (financial or otherwise) or results of operations of the Underwriters, would reasonably be expected to have Company and its Subsidiaries taken as a Material Adverse Effectwhole.
(de) Each of the representations and warranties of the Company and the Selling Shareholders contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and the Selling Shareholders and all conditions herein contained to be fulfilled or complied with by the Company and the Selling Shareholders at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) The Representatives shall have received opinions, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, and satisfactory in form and substance to counsel for the Underwriters, from Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx and McQuaide, Blasko, Xxxxxxxx, Xxxxxxx & Xxxxxxxx, Inc. counsel to the Company, to the effect set forth in Exhibit C, from Xxxx X. Xxxxxxxx, Esq., general counsel of Xxxx Markets, Inc., to the effect set forth in Exhibit D and from [ ], counsel to Xxxxxx X. Xxxxx, III, to the effect set forth in Exhibit E. The Representatives shall have received certificates dated the Closing Date, and satisfactory in form and substance to counsel for the Underwriters, from each Selling Shareholder (other than Xxxxxx X. Xxxxx, III) to the effect set forth in Exhibit F.
(g) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from Cravath, Swaine & Xxxxx, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives.
(h) On the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement. At the Initial Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at any Subsequent Closingthe Closing Date and the Option Closing Date.
(i) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Underwriters a Representatives an accurate certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, to the effect that that:
(i) each signer of such certificate has carefully examined the Offering Statement, the Final Offering Circular Registration Statement and the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither since the Final Offering Circular nor Effective Date, no event has occurred as a result of which it is necessary to amend or supplement the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary Prospectus in order to make the statements therein, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.;
(ii. Each ) each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.respects;
(iii. Each ) each of the covenants required herein to be performed by the Company on or prior to the date delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery date of such certificate has been duly, timely and fully complied with.; and
(iv. To their knowledge) since the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) there has not been, and no stop order suspending development has occurred which could reasonably be expected to result in, a material adverse change in the qualification general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Offering Statement Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of any part thereof has been issued and no proceedings for that purpose have been instituted business, in each case other than as set forth in or are contemplated by the CommissionRegistration Statement and the Prospectus and (B) neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, and such other matters as the Representatives may reasonably request.
v. Subsequent (j) At the Closing Date there shall have been furnished to the Representatives a certificate, dated the date of its delivery, signed by the Attorneys-in-Fact on behalf of each of the Selling Shareholders, in form and substance satisfactory to the Representatives, to the effect that the representations and warranties of each of the Selling Shareholders contained herein are true and correct in all material respects on and as of the date of such certificate as if made on and as of the date of such certificate, and each of the covenants and conditions required herein to be performed or complied with by the Selling Shareholders on or prior to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there such certificate has been no Material Adverse Changeduly, timely and fully performed or complied with.
(gk) On or prior to the Closing Date, the Representatives shall have received the executed agreements referred to in Section 5(i).
(l) The Shares shall be qualified for sale in such states as the Representatives may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date.
(m) Prior to the Closing Date, the Shares shall have been duly authorized for listing by the New York Stock Exchange upon official notice of issuance.
(n) The National Association of Securities Dealers, Inc. shall have approved the underwriting terms and arrangements and such approval shall not have been withdrawn or limited. 20
(o) The Company and the Selling Shareholders shall have furnished or caused to be furnished to the Underwriters Representatives such certificates, in addition to those specifically mentioned herein, as the Underwriters Representatives may have reasonably requested as to the accuracy and completeness on any at the Closing Date Date, with respect to the Company and the Selling Shareholders, and the Option Closing Date, with respect to the Company, of any statement statements in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Registration Statement or the Final Offering CircularProspectus, only with respect to the Company by the Company and with respect to the Selling Shareholders by such Selling Shareholders, as to the accuracy on such at the Closing Date and the Option Closing Date of the representations and warranties of the Company and the Selling Shareholders herein only with respect to the Company by the Company and with respect to the Selling Shareholders by such Selling Shareholders, as to the performance by the Company and the Selling Shareholders of its and their respective obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the UnderwritersRepresentatives only with respect to the Company by the Company and with respect to the Selling Shareholders by such Selling Shareholders.
(hp) On or prior No changes shall have been made to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form certificate of Exhibit B hereto from each of the Company’s officers, directors, incorporation and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing by-laws of the Company and the each of its Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect subsequent to the fairness or reasonableness of date hereof and prior to the plan of distributionClosing Date, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhereor, if the effect of any such event specified in clause (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closinglater, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering CircularOption Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Aquapenn Spring Water Company Inc)
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering ADS Registration Statement, the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering ADS Registration Statement, the Registration Statement or the qualification or exemption registration of the Shares ADSs under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement ADS Registration Statement, the Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters did Representative does not object thereto in good faith, and (v) the Underwriters shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the applicable Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials and the Final Offering CircularProspectus, there shall not have been no litigation a material adverse change in the general affairs, business, properties, management, condition (financial or other proceeding instituted against otherwise) or results of operations of the Company or any of its officers Subsidiaries, whether or directors not arising from transactions in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceedingthe ordinary course of business, in each case other than as described in or contemplated by the reasonable judgment of Registration Statement and the Underwriters, would reasonably be expected to have a Material Adverse EffectPricing Prospectus.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option ADSs, at the applicable Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option ADSs, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(e) On the Closing Date, the The Underwriters shall have received an opinion, dated the opinion Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, satisfactory in form and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., substance to the Representative and counsel for the CompanyUnderwriters from Txxxxxxx Sxxxxxx LLP, addressed U.S. counsel to the UnderwritersCompany and Fidal Law Firm, dated French counsel to the Company. In addition, such U.S. counsel shall state that in connection with such counsel’s participation in the preparation of the Registration Statement, the Prospectus and the General Disclosure Package, such counsel has no reason to believe (i) that, as of the Effective Date, the Registration Statement or any further amendment thereto (other than the financial statements, schedules and other financial data contained or incorporated by reference therein or omitted therefrom, as to which such counsel need express no belief) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) that the General Disclosure Package (other than the financial statements, schedules and other financial data contained or incorporated by reference therein or omitted therefrom, as to which such counsel need express no belief), as of the Applicable Time contained any 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, or (iii) that the Prospectus, or any further amendment or supplement thereto, as of its date and the Closing Date and, if later, the applicable Option Closing Date, substantially contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the form satisfactory light of the circumstances under which they were made, not misleading (other than the financial statements, schedules and other financial data contained or incorporated by reference therein or omitted therefrom, as to the Underwriterswhich such counsel need express no belief).
(f) The Underwriters shall have received an opinion, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters, of Exxxx, Xxxxxx & Mxxxxx, LLP, counsel for the Depositary, addressed to the addressed to the Representative on behalf of itself and the several Underwriters.
(g) The Underwriters shall have received an opinion and negative assurance letter, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, as the case may be, from Gxxxxxx Procter LLP, U.S. counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion and negative assurance letter shall be satisfactory in all respects to the Representative.
(h) The Underwriters shall have received an opinion and negative assurance letter, dated the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, as the case may be, from Txxxxx Xxxxxxx, French counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion and negative assurance letter shall be satisfactory in all respects to the Representative.
(i) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery, addressed to the Representative on behalf of itself and the several Underwriters and in form and substance satisfactory to the Representative, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Initial Closing Date and, as to the Option ADSs, the applicable Option Closing Date, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at any Subsequent Closingthe Closing Date or the applicable Option Closing Date, as the case may be.
(j) At the Closing Date and, as to the Option ADSs, the applicable Option Closing Date, there shall be furnished to the Underwriters a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representative, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the applicable Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement satisfied or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Changefulfilled.
(gk) At the Closing Date and, with respect to the Option ADSs, the applicable Option Closing Date, there shall have been furnished to the Underwriters a certificate, dated the delivery date, and addressed to the Representative on behalf of itself and the several Underwriters, signed by the chief financial officer of the Company, in form and substance satisfactory to the Representative.
(l) On or prior to the Closing Date, the Underwriters shall have received the executed agreements referred to in Section 4(n).
(m) The Deposit Agreement shall be in full force and effect and the Company and the Depositary shall have taken all action necessary to permit the deposit of the Ordinary Shares and the issuance of the Offered ADSs in accordance with the Deposit Agreement.
(n) The Depositary shall have furnished or caused to be furnished to the Underwriters a certificate satisfactory to the Representative of one of its authorized officers evidencing the deposit with the custodian of the Ordinary Shares against issuance of the Offered ADSs, the execution, issuance, countersignature (if applicable) and delivery of the Offered ADSs pursuant to the Deposit Agreement and such other matters related thereto as the Representative reasonably requests.
(o) The Offered ADSs shall be qualified for sale in such jurisdictions as the Underwriters may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the applicable Option Closing Date.
(p) Prior to the Closing Date, the Offered ADSs and the Underlying Shares shall have been duly authorized for listing on the NASDAQ upon official notice of issuance.
(q) The Company shall have furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters Representative may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the applicable Option Closing Date of any statement in the Offering Registration Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Prospectus or the Final Offering CircularGeneral Disclosure Package, as to the accuracy on such at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 10:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives, and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect effect, and no proceeding for such purpose shall be pending before, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof hereof, no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief Executive Officer or the Chairman of the Company, Board of Directors of the Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials Registration Statement and the Final Offering CircularProspectus, (i) there shall not have occurred and no development shall have occurred which could reasonably be expected to result in a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor any of the Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its the Subsidiaries or any of their respective officers or directors in their capacities as such, before or by any federalFederal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, in the reasonable judgment of the Underwriters, decision or finding would reasonably be expected to have a Material Adverse Effect.
(de) Each of the representations and warranties of the Company and the Material Subsidiaries contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materialityat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made on such dateat the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriterswith.
(f) At The Representatives shall have received an opinion, dated the Initial Closing Date and, with respect to the Option Shares, the Option Closing Date, from Weil, Gotshal & Manges LLP, counsel to the Company, to the effect set forth in Exhibit X.
(g) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, from Baker & Botts, L.L.P., counsel to the Underwriters, with respect to thx Xxxistxxxxxn Statement, the Prospectus and at any Subsequent Closingthis Agreement, there which opinion shall be satisfactory in all respects to the Representatives.
(h) On the date of the Prospectus, the Accountants shall have furnished to the Underwriters Representatives a certificateletter, dated the date of its delivery, signed by each of addressed to the President Representatives and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representatives, confirming that they are independent accountants with respect to the effect that each signer has carefully examined Company as required by the Offering Statement, the Final Offering Circular Act and the Pricing Disclosure Materials, Rules and that to each of such person’s knowledgeRegulations and stating in effect that:
i. As of (i) In their opinion the date of each such certificate, (x) financial statements and schedules examined by them and included or incorporated by reference in the Offering Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary comply in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.
ii. Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations;
(ii) They have made a review of the unaudited financial statements included in the Registration Statement in accordance with standards established by the American Institute of Certified Public Accountants, as indicated in their reports attached to such letter;
(iii) On the basis of the review referred to in clause (ii) above, a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company who have responsibility for those representations financial and warranties accounting matters and other specified procedures, nothing came to their attention that caused them to believe that:
(A) The unaudited financial statements included in the Registration Statement do not comply in form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations or are not qualified by materiality.
iii. Each in conformity with GAAP applied on a basis substantially consistent with that of the covenants required herein audited financial statements in the Registration Statement;
(B) The pro forma financial statements included in the Registration Statement and the Prospectus do not comply in form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation SX of the Rules and Regulations or that the pro forma adjustments have not been properly applied to be performed the historical amounts in the compilation of such statements;
(C) At the date of the latest available balance sheet read by the Company on such accountants, or at a subsequent specified date not more than five days prior to the date of such certificate has been dulythis Agreement, timely and fully performed and each condition herein required to be complied with by there was any change in the Company on capital stock or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification any increase in total current liabilities or total liabilities or any decrease in total current assets or total assets of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by Company, as compared with amounts shown on the Commission.latest balance sheet included in the Prospectus; or
v. Subsequent to (D) For the period from the closing date of the most recent financial statements latest income statement included in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.
(g) The Company shall have furnished or caused to be furnished Prospectus to the Underwriters closing date of the latest available income statement read by such certificatesaccountants, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as or to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as subsequent specified date referred to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in C), there were any decreases, as compared with the judgment corresponding periods of the Representative makes it impracticable previous year, in total revenues, total operating expenses or inadvisable to proceed with net income; except in all cases set forth above for changes, increases or decreases which the offering Prospectus discloses have occurred or the delivery of the Shares being delivered on any Closing Date on the terms and may occur or which are described in the manner contemplated in the Final Offering Circular.such letter; and
(miv) At the Closing Date They have compared specified dollar amounts (or percentages derived from such dollar amounts) and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain other financial information contained in the Offering StatementRegistration Statement (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the Pricing Disclosure Materials general accounting records of the Company and its subsidiaries subject to the Final Offering Circular.internal controls of the Company's accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are subject to the following conditions:
(1a) the accuracy All filings required by Rule 424 and Rule 430A of the representations Rules and warranties Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the part date of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:this Agreement.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and authorities, (iv) after the date hereof no amendment or supplement to the Offering Statement Registration Statement, the Prospectus or the Final Offering Circular Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representative and the Underwriters did Representative does not object thereto in good faith, and (v) the Underwriters Representative shall have received certificates of the Companycertificates, dated as of each the Closing Date and, if later, the applicable Option Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Changethis paragraph.
(c) Since the respective dates as of which information is given in the Offering Statement, Registration Statement and the Pricing Disclosure Materials Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Final Offering CircularPricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceedingproceeding an unfavorable ruling, decision or finding would, in the reasonable judgment of the UnderwritersRepresentative, would reasonably be expected to have a Material Adverse EffectEffect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price.
(de) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations (in the case of any representation and warranties qualified by warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations (in the case of any other representation and warranties that are not qualified by materialitywarranty) at the Closing Date and, as if made on such datewith respect to the Option Shares, at the applicable Option Closing Date, and all covenants and agreements contained herein contained to be performed on the part of the Company and all conditions contained herein contained to be fulfilled or complied with by the Company at or prior to such the Closing Date and, with respect to the Option Shares, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respectswith.
(ef) On The Representative shall have received an opinion and negative assurance letter, dated the Closing Date and the applicable Option Closing Date, the Underwriters shall have received the opinion from each of Catania & Xxxxxx, LLP and 10b-5 negative assurances letter from Xxxxxx & Xxxxxx LLP, Washington, D.C., counsel for to the Company, addressed with respect to the UnderwritersRegistration Statement, dated as of the Closing DateProspectus and this Agreement, substantially which opinion and negative assurance letter shall be satisfactory in all respects to the form satisfactory to Representative and counsel for the Underwriters.
(fg) The Representative shall have received an opinion and negative assurance letter, dated the Closing Date and the applicable Option Closing Date, from Xxxxxxx Procter LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion and negative assurance letter shall be satisfactory in all respects to the Representative.
(h) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, addressed to the Representative and in form and substance satisfactory to the Representative, confirming (i) that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and (ii) certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Closing Date and, as to the Option Shares, the applicable Option Closing Date, the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from such Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date or the applicable Option Closing Date, as the case may be.
(i) At the Initial Closing and at any Subsequent ClosingDate and, as to the Option Shares, the applicable Option Closing Date, there shall be furnished to the Underwriters Representative a certificate, dated the date of its delivery, signed by each of the President Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as officers of the Company, in form and substance satisfactory to the Underwriters Representative, to the effect that each that:
(i) Each signer of such certificate has carefully examined the Offering Registration Statement, the Final Offering Circular Prospectus and the General Disclosure Package (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Pricing Disclosure Materials, Prospectus and that to each of such person’s knowledge:
i. As the Prospectus) and (A) as of the date of each such certificate, (x) the Offering Statement does such documents are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (yB) neither in the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light case of the circumstances under which they were madecertificate delivered at the Closing Date and the applicable Option Closing Date, not misleading and since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular Prospectus in order to make the statements therein not untrue or misleading in any material respectmisleading.
(ii. ) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by (in the case of any representation or warranty containing a materiality and or Material Adverse Effect qualification) or in all material respects for those representations and warranties that are not qualified by materiality(in the case of any other representation or warranty).
(iii. ) Each of the covenants required herein to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company satisfied or fulfilled on or prior to the delivery date of such certificate has been duly, timely and fully complied withsatisfied or fulfilled.
iv. To their knowledge(j) On or prior to the Closing Date, no the Representative shall have received the executed agreements referred to in Section 4(n).
(k) The Shares shall be qualified for sale in such jurisdictions as the Representative may reasonably request and each such qualification shall be in effect and not subject to any stop order suspending or other proceeding on the qualification of Closing Date or the Offering Statement or of any part thereof has been issued and no proceedings for that purpose applicable Option Closing Date.
(l) Prior to the Closing Date, the Shares shall have been instituted or are contemplated by duly authorized for listing on the CommissionNGM upon official notice of issuance.
v. Subsequent (m) At the Closing Date and, as to the Option Shares, the applicable Option Closing Date, there shall be furnished to the Representative a certificate, dated the date of its delivery, signed by the most recent financial statements in Secretary of the Offering Statement Company certifying as to (i) the Company’s charter, (ii) the Company’s bylaws and in (iii) the Final Offering Circularresolutions of the Board of Directors of the Company authorizing the filing of the Registration Statement, there has been no Material Adverse Changethe execution and delivery of this Agreement and all other matters related thereto.
(gn) At the Closing Date and, as to the Option Shares, the applicable Option Closing Date, there shall be furnished to the Representative a certificate, dated the date of its delivery, signed by the chief financial officer of the Company, in his or her capacity as such, in form and substance satisfactory to the Representative.
(o) The Company shall have furnished or caused to be furnished to the Underwriters Representative such certificates, in addition to those specifically mentioned herein, as the Underwriters Representative may have reasonably requested as to the accuracy and completeness on any at the Closing Date and the applicable Option Closing Date of any statement in the Offering Registration Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials Prospectus or the Final Offering CircularGeneral Disclosure Package, as to the accuracy on such at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of each Underwriter hereunder are the Underwriters to purchase and pay for the Notes shall be subject to (1) the accuracy of the representations and warranties on the part of the Company set forth in Section 3, as of the date hereof and as of the Closing Date as though then made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:
(ia) No At the time of closing, the Indenture shall be qualified under the Trust Indenture Act, the Prospectus shall have been filed or delivered for filing to the Commission not later than 5:00 p.m. on the second business day following the date hereof, no stop order suspending the qualification effectiveness of the Offering Statement Registration Statement, as amended from time to time, shall have been issued, be in effect and no proceedings for that purpose shall be pending before or threatened by any securities the Commission, and the Representatives shall have received a certificate dated the day of closing and signed by a Vice President of the Company to the effect that no such stop order is in effect and, to the knowledge of the Company, no proceedings for such purpose are pending before, or other governmental authority (including, without limitationthreatened by, the Commission).
(b) At or prior to the time of closing, the Representatives shall have received from Perkins Coie LLP, counsel for the Company, an opinion, satisfxxxxxx to Davis Polk & Wardwell, to the effect that:
(x) xxx Xompxxx xx x corporation in good standing, duly organized and validly existing under the laws of the State of Delaware; and is authorized by its Certificate of Incorporation to transact the business in which it is engaged, as set forth in the Prospectus;
(ii) no order suspending the qualification Company is duly qualified to transact the business in which it is engaged, as set forth in the Prospectus, in each State in the United States in which it operates;
(iii) the Indenture has been duly executed and delivered pursuant to due authorization by appropriate corporate action, is a valid and binding agreement in accordance with its terms and has been duly qualified under the Trust Indenture Act;
(iv) the Notes, when duly executed, registered and authenticated pursuant to the Indenture and delivered to and paid for by the Underwriters in accordance with the provisions hereof, will be legal, valid and binding obligations of the Offering Statement or the qualification or exemption Company in accordance with their terms;
(v) this Agreement has been duly authorized, executed and delivered on behalf of the Shares Company and is valid and binding on the Company, except as rights to indemnity and contribution hereunder may be limited under applicable law;
(vi) all consents, approvals, authorizations or other orders of U.S. regulatory authorities legally required for the execution of the Indenture and the issuance and sale of the Notes to the Underwriters pursuant to the terms of this Agreement, have been obtained, except such as may be required by the securities or Blue Sky laws of any jurisdiction shall be the various States in effect connection with the offer and no proceeding for sale of the Notes; and
(vii) except as to financial statements and schedules and other financial and statistical information contained therein, which such purpose shall be pending before, or threatened or contemplated by, any securities or other governmental authority (including, without limitation, the Commission)opinion need not pass upon, (iiiA) any request for additional information on each document or portion thereof incorporated by reference in the part of the staff of any securities or other governmental authority (including, without limitation, the Commission) shall have been Prospectus complied when filed with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement as to the Offering Statement or the Final Offering Circular shall have been filed unless a copy thereof was first submitted to the Underwriters and the Underwriters did not object thereto in good faith, and the Underwriters shall have received certificates of the Company, dated as of each Closing Date and signed by the President and Chief Executive Officer of the Company, and the Chief Financial Officer of the Company, to the effect of clauses (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding, in the reasonable judgment of the Underwriters, would reasonably be expected to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and form in all material respects for those representations and warranties that are not qualified by materialitywith the requirements of the Act or the Exchange Act, as if made on such dateapplicable, together with the applicable instructions, rules and all covenants and agreements herein contained to be performed on regulations of the Commission thereunder, (B) each part of the Company and all conditions herein contained Registration Statement when it became effective complied as to be fulfilled or complied with by the Company at or prior to such Closing Date shall have been duly performed, fulfilled or complied with form in all material respects.
(e) On respects with the Closing Date, the Underwriters shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as requirements of the Closing DateAct and the applicable instructions, substantially in rules and regulations of the form satisfactory to Commission thereunder; (C) the Underwriters.
(f) At Registration Statement and the Initial Closing Prospectus, as amended or supplemented, if applicable, comply, and at any Subsequent Closing, there shall be furnished to the Underwriters a certificate, dated the date of its deliverythereof complied, signed by each as to form in all material respects with the requirements of the President Act and the Chief Financial Officer applicable instructions, rules and regulations of the Company, in their capacities as officers of the Company, in form Commission thereunder; and substance satisfactory (D) advising that nothing came to the Underwriters such counsel's attention which would lead such counsel to the effect that each signer has carefully examined the Offering Statement, the Final Offering Circular and the Pricing Disclosure Materials, and that to each of such person’s knowledge:
i. As of the date of each such certificate, believe (x) any part of the Offering Registration Statement does not contain at the time it became effective contained any 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; and (y) as of the closing date, the Prospectus contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading. At Perkins Coie's option, the opinion specified in clause (ii) above may xx xxxxvered by Gregory P. Landis, Senior Vice President and no event General Counsel of the Coxxxxx, xx xxxx xx Perkins Coie LLP.
(c) At or prior to the time of closing, the Representatives shall have received from Davis Polk & Wardwell an opinion to the effect specified in cxxxxxx (xxi) xxxxxxx (v) and (vii)(B), (C) and (D) of subparagraph (b) above.
(d) At the date hereof and at or prior to the time of closing, the Representatives shall have received an executed copy of a letter of PricewaterhouseCoopers LLP, addressed to the Company and to the Representatives, to the effect that: (i) they are independent public accountants as required by the Act and the applicable published rules and regulations of the Commission thereunder; (ii) the audited financial statements contained or incorporated by reference in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the applicable published rules and regulations of the Commission thereunder; (iii) the unaudited pro forma financial statements contained or incorporated by reference in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X promulgated by the Commission; and (iv) nothing has occurred come to their attention as a the result of specified procedures not constituting an audit that caused them to believe (A) that the unaudited financial statements, if any, contained in or incorporated by reference as aforesaid, do not so comply and are not fairly presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements contained as aforesaid, (B) that there was any change in the capital stock or increase in long term debt of the Company, or any decrease in net assets, from the date of the latest balance sheet which it is necessary contained in the Registration Statement, to amend a date not more than five days prior to the date of such letter or supplement (C) that there were any decreases, as compared with the Final Offering Circular corresponding period in order the preceding year, in total revenues, operating income or net income from the date of the latest figures for such items contained in the Registration Statement to make the date of the latest available financial statements therein of the Company; provided that, with respect to any of the items specified in clause (iv), such letter may contain an exception for matters which the Registration Statement discloses have occurred or may occur; and provided further, that the letter may vary from the requirements specified in this subparagraph in such manner as the Representatives in their sole discretion may determine to be immaterial or in such manner as may be acceptable to the Representatives.
(e) Except as reflected in or contemplated by the Registration Statement and the Prospectus, since the respective dates as of which information is given in the Registration Statement and the Prospectus there shall not untrue or misleading in have been, at the time of closing, any material respect.
ii. Each adverse change, financial or otherwise, in the condition of the Company from that set forth in the Registration Statement and the Prospectus; there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Company's securities by Moody's Investors Service, Inc. or Standard & Poor's Ratings Xxxxx, a division of McGraw Hill, Inc.; the representations and warranties of the Company herein shall be true at the time of closing; the Company shall not have failed, at or prior to the time of closing, to have performed all agreements herein contained in this Agreement were, when originally made, which should have been performed by it at or prior to such time; and arethe Representatives shall have received, at the time such of closing, a certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
iii. Each to the foregoing effect dated the day of the covenants required herein to closing and signed by a Vice President of the Company. In case any of the conditions specified above in this section 9 shall not have been fulfilled, this Agreement may be performed terminated by the Company on or prior Representatives by delivering written notice of termination to the date Company. Any such termination shall be without liability of such certificate has been duly, timely and fully performed and each condition herein required any party to be complied with by the Company on or prior any other party except to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements extent provided in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.
subparagraph (g) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriterssection 8 hereof.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering Circular.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
Appears in 1 contract
Samples: Underwriting Agreement (At&t Wireless Services Inc)
Conditions of the Obligations of the Underwriters. The In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions:
(1a) Notification that the accuracy Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 of the representations Rules and warranties on the part of the Company set forth in Section 3, as of the date hereof Regulations and as of the Closing Date as though then Rule 430A shall have been made, (2) the timely performance by the Company of its covenants and obligations hereunder, and (3) each of the following additional conditions:.
(i) No stop order suspending the qualification effectiveness of the Offering Registration Statement shall have been issued, issued and no proceedings for that purpose shall be pending or threatened by any securities or other governmental authority (including, without limitation, the Commission), (ii) no order suspending the qualification effectiveness of the Offering Registration Statement or the qualification or exemption 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, before or threatened or contemplated by, by the Commission or the authorities of any securities or other governmental authority (including, without limitation, the Commission)such jurisdiction, (iii) any request for additional information on the part of the staff of the Commission or any securities or other governmental authority (including, without limitation, the Commission) such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Offering Registration Statement or the Final Offering Circular Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters Representatives and the Underwriters Representatives did not object thereto in good faith, and the Underwriters Representatives shall have received certificates of the Companycertificates, dated as of each the Closing Date and the Option Closing Date and signed by the President and Chief or any Senior or Executive Officer Vice President of the Company, Company and the Chief Financial Officer of the CompanyCompany (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, in the reasonable judgment of the Underwriters there shall not have occurred a Material Adverse Change.
(c) Since the respective dates as of which information is given in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federal, state or local or foreign court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, which litigation or proceeding, in the reasonable judgment of the Underwriters, would reasonably be expected to have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct as of each Closing Date in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality, as if made on such date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to such Closing Date shall have been duly performed, fulfilled or complied with in all material respects.
(e) On the Closing Date, the Underwriters The Representatives shall have received the opinion and 10b-5 negative assurances letter from Xxxxxx Xxxxxx LLP, Washington, D.C., counsel for the Company, addressed to the Underwriters, dated as of the Closing Date, substantially in the form satisfactory to the Underwriters.
(f) At the Initial Closing and at any Subsequent Closing, there shall be furnished to the Underwriters a certificateletter, dated the date of its deliverydelivery thereof (which, signed by each if the Effective Time of the President Registration Statement is prior to the execution and delivery of this Agreement, shall be on or prior to the Chief Financial Officer date of this Agreement or, if the Effective Time of the CompanyRegistration Statement is subsequent to the execution and delivery of this Agreement, in their capacities as officers shall be prior to the filing of the Companyamendment or post-effective amendment to the registration statement to be filed shortly prior to such Effective Time), of Coopers & Lybrxxx X.X.P. in form and substance satisfactory to the Underwriters to Representatives confirming that they are independent public accountants within the effect that each signer has carefully examined meaning of the Offering Statement, the Final Offering Circular Act and the Pricing Disclosure Materials, applicable published Rules and that to each of such person’s knowledge:
i. As of the date of each such certificate, (x) the Offering Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading Regulations thereunder and (y) neither the Final Offering Circular nor the Pricing Disclosure Materials contains any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and no event has occurred as a result of which it is necessary to amend or supplement the Final Offering Circular in order to make the statements therein not untrue or misleading in any material respect.
ii. Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects for those representations and warranties qualified by materiality and in all material respects for those representations and warranties that are not qualified by materiality.
iii. Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
iv. To their knowledge, no stop order suspending the qualification of the Offering Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
v. Subsequent to the date of the most recent financial statements in the Offering Statement and in the Final Offering Circular, there has been no Material Adverse Change.
(g) The Company shall have furnished or caused to be furnished to the Underwriters such certificates, in addition to those specifically mentioned herein, as the Underwriters may have reasonably requested as to the accuracy and completeness on any Closing Date and of any statement in the Offering Statement, the Preliminary Offering Circular, the Pricing Disclosure Materials or the Final Offering Circular, as to the accuracy on such Closing Date of the representations and warranties of the Company as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters.
(h) On or prior to the date hereof, the Company shall have furnished to the Underwriters an agreement substantially in the form of Exhibit B hereto from each of the Company’s officers, directors, and 10% of greater security holders of the Company’s Common Stock or securities convertible into or exercisable for shares of the Company’s Common Stock, and each such agreement shall be in full force and effect on the Closing Date.
(i) The Shares have been approved for listing upon notice of issuance on the NASDAQ.
(j) The Company shall have furnished or caused to be furnished to the Underwriters on each Closing Date satisfactory evidence of the good standing of the Company and the Subsidiaries in their respective jurisdiction of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) FINRA shall not have raised any objection with respect to financial information relating to the fairness Company included or reasonableness of the plan of distribution, or other arrangements of the transactions, contemplated hereby.
(l) On or after the Applicable Time there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc., NYSE MKT or NASDAQ; (b) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services incorporated in the United States; (c) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (d) 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 (c) or (d) in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares being delivered on any Closing Date on the terms and in the manner contemplated in the Final Offering CircularRegistration Statements.
(m) At the Closing Date and at any Subsequent Closing, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery (the “Comfort Letter”), addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters 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 contained in the Offering Statement, the Pricing Disclosure Materials and the Final Offering Circular.
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