Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions: (a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule. (b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A. (c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date. (d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole. (e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus. (f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters. (g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters. (h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel. (i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto. (j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance. (k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby. (l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering. (m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 4 contracts
Samples: Underwriting Agreement (Medalist Diversified REIT, Inc.), Underwriting Agreement (Medalist Diversified REIT, Inc.), Underwriting Agreement (Medalist Diversified REIT, Inc.)
Conditions of the Underwriters’ Obligations. The obligations obligation of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters Underwriter to purchase the Shares are Underwritten Firm Securities or any Underwritten Option Securities, as applicable, is subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Underwriter and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeUnderwriter. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Underwriter of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the any certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative Underwriter shall have received on each Closing Date a certificate, addressed to the Representative Underwriter and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, Prospectus and the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, includedPackage did not include, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative Underwriter shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Underwriter and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeUnderwriter, 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 and the General Disclosure Package, and (ii) on each the Closing Date, a signed letter from the Auditor addressed to the Representative Underwriter and dated the date of such Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative Underwriter 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 and the Prospectus.
(f) On each Closing Date, the Representative The Underwriter shall have received on each Closing Date from Txxxxxxx Sxxxxxx LLP, corporate counsel for the favorable opinionCompany, an opinion and negative assurance statement, addressed to the Underwriter and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersUnderwriter.
(g) On each Closing Date, the Representative The Underwriter shall have received the favorable tax opinionon each Closing Date from DLA Piper LLP and Bozicevic, dated as of such Closing DateField & Fxxxxxx LLP, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax intellectual property counsel for the Company, their opinions, each addressed to the Underwriter and dated such Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersUnderwriter.
(h) The Underwriter shall have received on each Closing Date from Lxxxxxxxxx Xxxxxxx LLP, counsel for the Underwriter, an opinion and negative assurance statement, addressed to the Underwriter and dated such Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Underwriter, and their counselcounsel to the Underwriter.
(ij) The Representative Underwriter shall have received copies of the Lock-up Agreements executed by each entity or person director and executive officer of the Company listed on Schedule IV I hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent The Underwriter shall have received on the Firm Securities Closing Date copies of the executed Pre-Funded Warrants in portable document (“PDF”) format.
(l) The Underwriter shall have received on each Closing Date PDF copies of the executed Warrants being sold on such Closing Date.
(m) The Company shall have submitted a Notification Form: Listing of Additional Shares with The Nasdaq Capital Market with respect to the execution Shares, Pre-Funded Warrant Shares and delivery of this Agreement or, if earlier, Warrant Shares.
(n) The Underwriter shall be reasonably satisfied that since the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ Underwriter’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(lo) On or prior to the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Securities.
(mp) The Company shall have furnished or caused to be furnished to the Representative Underwriter such further customary certificates or documents as the Representative Underwriter shall have reasonably requested.
Appears in 3 contracts
Samples: Underwriting Agreement (Ensysce Biosciences, Inc.), Underwriting Agreement (Ensysce Biosciences, Inc.), Underwriting Agreement (Ensysce Biosciences, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Transaction Securities are subject to each of the following terms and conditions:
(a) Notification that the The Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement Agreement, and any material required to be filed by the Company pursuant to Rule 433(d) of under the Rules Securities Act shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to filed with the Commission for filing pursuant to Rule 424(b) within the prescribed time period (without reliance on Rule 424(b)(8)) and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d3(e) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall not have reasonably determined, and advised the Company, that the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto contains any untrue statement of fact which, in the Representative’s reasonable opinion, is material, or omits to state a fact which, in the Representative’s reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(e) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (ix) the General Disclosure Package, nor (iiy) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) the Transaction Securities (other than the Pre-Funded Warrants) and the Warrant Shares have been approved for listing on The NASDAQ Capital Market; (v) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (vvi) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus there has not occurred been any material adverse change Material Adverse Effect or any event that is reasonably likely to result in a Material Adverse Effect, whether or not arising from transactions in the assets, properties, condition, financial or otherwise, or in the results ordinary course of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholebusiness.
(ef) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the secretary of the Company to the effect that: (i) attached to such certificate is a true and complete copy of the certificate of incorporation of the Company, together with all amendments thereto, and that such certificate of incorporation has not been modified since the date shown on the attached certificate of incorporation and such certificate of incorporation is in full force and effect as of the date thereof; (ii) attached to such certificate is a true and complete copy of the bylaws of the Company, together with all amendments thereto, and that such bylaws have not been modified since the date shown on the attached bylaws and such bylaws are in full force and effect as of the date thereof; (iii) attached to such certificate are true, complete and correct copies of the resolutions duly and validly adopted by the board of directors of the Company approving and authorizing the Offering, that such resolutions have not been amended, suspended, modified, rescinded or revoked, and remain in full force and effect as of the date thereof, and such resolutions are the only resolutions adopted by the Company’s board of directors relating to the Offering; (iv) attached to such certificate are true and correct certificates of good standing or equivalent certificates of the Company and its subsidiaries in such jurisdictions as the Representative shall reasonably request; and (v) such officer certifies the signatures of the officers of the Company executing documents in connection with the transactions contemplated by this Agreement and the signatures appearing opposite their respective names are the true and genuine signatures of such officers as of the date thereof.
(g) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and Statement, the General Disclosure PackagePackage or the Prospectus, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(fh) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLCTxxxxxxx Hxxx LLP, as counsel to the Company, and addressed to the Underwriters, in form and substance reasonably satisfactory to counsel for the Underwriters.
(gi) On each Closing Date, the Representative there shall have received been furnished to the favorable tax opinionUnderwriters the negative assurance letter of Hxxxxx Xxxxxxx & Exxxx LLP, as counsel to the Underwriters, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for and addressed to the CompanyUnderwriters, in form and substance reasonably satisfactory to counsel for the Underwriters.
(hj) All proceedings taken Each item required to be delivered in connection accordance with the sale of the Firm Shares and the Option Shares as herein contemplated this Section 3 shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(ik) The Representative shall have received copies of the Lock-up Agreements in form and substance reasonably satisfactory to counsel for the Underwriters executed by each entity or person listed on Schedule IV III hereto.
(jl) The Transaction Securities (other than the Pre-Funded Warrants) and the Warrant Shares shall have been approved for listing on The NASDAQ Capital Market and satisfactory evidence of such action shall have been provided to the Representative. The Company shall have taken no action designed to, or likely to have the effect of terminating the registration of the Common Stock and Warrants under the Exchange Act or delisting or suspending from trading the Transaction Securities (other than the Pre-Funded Warrants) or the Warrant Shares from The NASDAQ Capital Market, subject only to official notice of issuancenor has the Company received any information suggesting that the Commission or The NASDAQ Capital Market is contemplating terminating such registration or listing. The Transaction Securities and the Warrant Shares shall be DTC eligible.
(km) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) long-term debt of the Transaction EntitiesCompany or its subsidiaries, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or and the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or affairs, business prospects or stockholders’ equity of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares Transaction Securities as contemplated hereby.
(ln) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(mo) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to the Representative or to counsel to the Underwriters pursuant to this Section 3 shall not be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters, then the obligations of the Underwriters to consummate the Closing hereunder may be cancelled by the Representative at, or at any time prior to, the consummation of the Closing. Notice of such cancellation shall be given to the Company in writing or orally. Any such oral notice will be confirmed promptly thereafter by written, electronic or facsimile notice.
Appears in 3 contracts
Samples: Underwriting Agreement (Blue Sphere Corp.), Underwriting Agreement (Blue Sphere Corp.), Underwriting Agreement (Blue Sphere Corp.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares and the Warrants are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the The Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules) shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A430B, Rule 430A 430B information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates certificate delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each the Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such the Closing Date.
(d) The Representative shall have received on each the Closing Date a certificate, addressed to the Representative and dated such the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such the Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, Package and any individual Issuer Free Writing Prospectus andProspectus, and in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeRepresentative , 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 and the Disclosure Package, and (ii) on each the Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such the Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on the favorable opinionClosing Date from Disclosure Law Group, a Professional Corporation, counsel for the Company, an opinion and negative assurance statement, addressed to the Representative and dated as of such the Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the The Representative shall have received on the favorable tax opinionClosing Date from Rxxx Xxxxx, dated as of such Closing DateEsq., of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax intellectual property counsel for the Company, an opinion and negative assurance statement, addressed to the Representative and dated the Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) The Representative shall have received on the Closing Date from Lxxxxxxxxx Xxxxxxx LLP, counsel for the Representative, an opinion and negative assurance statement, addressed to the Representative and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares Warrants as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(ij) The On or prior to the execution and delivery of this Agreement, the Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent The Company shall have submitted a Notification Form: Listing of Additional Shares Application with the Nasdaq Capital Market with respect to the execution Shares and delivery Warrant Shares and the Nasdaq Capital Market shall have raised no objection with respect to the listing of this Agreement or, if earlier, the Shares and the Warrant Shares which has not been resolved to the reasonable satisfaction of the Representative on or before the Closing Date.
(l) The Representative shall be reasonably satisfied that since the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares and the Warrants as contemplated hereby.
(lm) On or before the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares and the Warrants.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 2 contracts
Samples: Underwriting Agreement (VistaGen Therapeutics, Inc.), Underwriting Agreement (VistaGen Therapeutics, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Units are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a4(a)(i) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule. No prospectus or amendment or supplement to the Registration Statement, the Prospectus, any Preliminary Prospectus, or any Issuer Free Writing Prospectus shall be filed to which the Underwriters shall have reasonably objected in writing.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as outside legal counsel to the Company, Company in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for to the Company, Company in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) On each Closing Date, there shall have been furnished to the Representative the negative assurance letter of Xxxxxx Xxxxxxx & Xxxxx LLP, counsel to the Representative, dated such Closing Date, as applicable, and addressed to the Representative, in form and substance reasonably satisfactory to the Representative.
(i) On each Closing Date, the Company shall deliver Representative’s Warrants to the Representative or its designees pursuant to Section 1(c) in the name or names and in such authorized denominations as the Representative may request.
(j) All proceedings taken in connection with the sale of the Firm Shares Units and the Option Shares Units as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(ik) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV 2(cc) hereto.
(jl) The Units, Shares and Warrants shall have been approved for listing on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance.
(km) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesEntities or Subsidiaries, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares Units as contemplated hereby.
(ln) On or prior to the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(mo) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
(p) On or prior to the Firm Closing Date, the Company shall have entered into the Warrant Agency Agreement.
Appears in 2 contracts
Samples: Underwriting Agreement (Generation Income Properties, Inc.), Underwriting Agreement (Generation Income Properties, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representative, and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor each of P&M and CGC addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 Statement, the General Disclosure Package and the Disclosure PackageProspectus, and (ii) on each Closing Date, a signed letter from the Auditor each of P&M and CGC addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 Statement, the General Disclosure Package and the Prospectus, provided, that such letter delivered on the Firm Shares Closing Date and as of each Option Shares Closing Date (if any), shall use a “cut-off” date no more than two business days prior to the Firm Shares Closing Date and each Option Shares Closing Date (if any).
(f) On each Closing Date, the The Representative shall have received the favorable opinionon each Closing Date from Xxxxxxxx & Xxxx LLP, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to for the Company, an opinion and negative assurance letter, addressed to the Representative and dated such Closing Date in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the The Representative shall have received the favorable tax opinionon each Closing Date from Xxxxxx X. Xxxxxx, dated as of such Closing DateP.C., of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax Colorado local counsel for the Company, an opinion and negative assurance letter, addressed to the Representative and dated such Closing Date in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) The Representative shall have received on each Closing Date from White & Case LLP, counsel for the Representative, an opinion and negative assurance letter, addressed to the Representative and dated such Closing Date in form and substance reasonably satisfactory to the Representative.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jk) The Shares shall have been approved for listing on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On or before the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Firm Shares Closing Date or an Option Shares Closing Date (if any), prevent the issuance or sale of the Shares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date or an Option Shares Closing Date (if any), prevent the issuance or sale of the Shares.
(o) The Representative shall have received on or prior to each Closing Date satisfactory evidence of the good standing of the Company in its jurisdiction of organization and its good standing as a foreign entity in such other jurisdictions as the Representative may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(p) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents (including a Secretary’s Certificate) as the Representative shall have reasonably requested.
Appears in 2 contracts
Samples: Underwriting Agreement (GrowGeneration Corp.), Underwriting Agreement (GrowGeneration Corp.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A430B, Rule 430A 430B information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the any certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have such person has carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their such person’s opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i1) the General Disclosure Package, nor (ii2) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 Statement, the General Disclosure Package and the Prospectus, provided, that such letters delivered on the Firm Shares Closing Date and as of each Option Shares Closing Date (if any), shall use a “cut-off” date no more than two business days prior to the Firm Shares Closing Date and each Option Shares Closing Date (if any).
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Xxxxxx & Xxxxxxx LLP, counsel for the favorable opinionCompany, an opinion and negative assurance letter, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersReserved.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 2 contracts
Samples: Underwriting Agreement (Oncternal Therapeutics, Inc.), Underwriting Agreement (Oncternal Therapeutics, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Securities are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such each Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such as of the respective Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeMaterial Adverse Effect.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such the respective Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Xxxxxx & Xxxxxxx LLP, U.S. counsel for the favorable opinionCompany, an opinion and a negative assurance letter, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the The Representative shall have received on each Closing Date from XxXxxxxx Xxxxxxxx LLP, Canadian counsel for the favorable tax Company, an opinion, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) The Representative shall have received on each Closing Date from Xxxxxx LLP, intellectual property counsel to the Company, an opinion, addressed to the Representative and dated as of such Closing Date, in form and substance reasonably satisfactory to the Representative.
(i) The Representative shall have received on each Closing Date from Xxxxx, Xxxxx, Xxxx, Xxxxxx, Xxxxxxx and Xxxxx, P.C., counsel for the Representative, a negative assurance statement, addressed to the Representative and dated as of such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of such documents as they request for enabling them to pass upon such matters.
(j) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(ik) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jl) The Shares Company shall have been approved for apply to list or quote and promptly secure the listing of all of the Common Shares, including the Warrant Shares, sold pursuant to this Agreement on the NASDAQ Nasdaq Capital Market. The Company has taken no action to, subject only or likely to official notice of issuancehave the effect of, delisting the Common Shares, nor has the Company received any notification that the Nasdaq Capital Market is contemplating terminating such listing.
(km) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to would result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to would have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(ln) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Securities.
(mo) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 2 contracts
Samples: Underwriting Agreement (Aptose Biosciences Inc.), Underwriting Agreement (Aptose Biosciences Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that each of the Registration Statement and the ADS Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or or, to the Company’s knowledge, threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing DateDate in all material respects (to the extent not otherwise qualified by materiality); (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the ADS Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, includednor (iii) as of the date it became effective, the ADS Registration Statement, included any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package ADS Registration Statement, the Statutory Prospectus or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) The Representative shall have received on each Closing Date from each of [Mxxxx Xxxxx LLP and Gxxxxxxx Sxxxxxxx & Co.], counsel for the Company, an opinion and negative assurance statement, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to the Representative.
(g) The Representative shall have received on each Closing Date from [Rxxxxxxx Xxxx & Partners], intellectual property counsel for the Company, an opinion and written negative assurances statement, addressed to the Representative and dated such Closing Date, in form and substance satisfactory to the Representative.
(h) On each the Closing Date, the Representative shall have received the favorable opinionopinion of Exxxx, Xxxxxx & Mxxxxx, LLP, counsel for the Depository, dated the Closing Date, addressed to the Representative in form and substance satisfactory to the Representative.
(i) The Representative shall have received on the Closing Date from each of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. and Zysman, Aharoni, Gxxxx & Co., counsel for the Representative, a negative assurance statement, addressed to the Representative and dated as of such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, such documents as counsel they request for enabling them to the Company, in form and substance reasonably satisfactory to counsel for the Underwriterspass upon such matters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(ij) The Representative shall have received copies of the Lock-up Up Agreements executed by each entity or person listed on Schedule IV II hereto. In the event that Oxxxxxxxxxx & Co. Inc., in its sole discretion, agrees to release or waive any restriction set forth in a Lock-Up Agreement for an officer or director of the Company, and provides the Company with notice of the impending release or waiver at least three Business Days before the effective date of such release or waiver (which release or waiver shall be substantially in the Form found at Exhibit A-1 attached hereto), the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit A-2 attached hereto through a major news service at least two Business Days before the effective date of the release or waiver.
(jk) The Shares shall have been approved for listing quotation on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance, and the TASE has approved the registration of the Ordinary Shares.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction adverse change in the future earnings results of operations of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material adverse change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) The Company and the Depository shall have executed and delivered the Deposit Agreement and the Deposit Agreement shall be in full force and effect and the Company and the Depository shall have taken all action necessary to permit the deposit of the Ordinary Shares and the issuance of the Shares in accordance with the Deposit Agreement. The Company shall, prior to the Closing Date, as the case may be, deposit the Ordinary Shares to be represented by the Shares with the Depository in accordance with the provisions of the Deposit Agreement and otherwise comply with the Deposit Agreement so that the ADSs will be issued by the Depository against receipt of such Ordinary Shares and delivered to the Underwriters at the Closing Dates.
(o) At each Closing Date, the Representative shall have received a certificate from the Depository satisfactory to the Representative with respect to the deposit with the Depository of the underlying Ordinary Shares represented by the Shares against issuance of the ADRs evidencing the Shares, the execution, issuance, countersignature and delivery of the ADRs evidencing the Shares pursuant to the Deposit Agreement and such other matters related thereto as the Representative may reasonably request.
(q) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 2 contracts
Samples: Underwriting Agreement (Anchiano Therapeutics Ltd.), Underwriting Agreement (Anchiano Therapeutics Ltd.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Securities are subject to each of the following terms and conditions:
(a) Notification that the The Registration Statement has become shall be effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430ARules 430A or 430B, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule Rules 430A or 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.Rules 430A or 430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date, except for representations and warranties that speak solely as of an earlier date, which shall be true and correct as of such earlier date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive officer or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been but was not set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor Xxxx Xxxxx addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor Xxxx Xxxxx addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each TroyGould PC shall have furnished to the Underwriters such counsel’s written opinion and negative assurance statement, addressed to the Representative and dated the Closing Date or the Option Closing Date, as applicable, in substantially the Representative form attached hereto as Exhibit B.
(g) Xxxxxx Xxxxxxx Xxxxx & Scarborough LLP shall have received furnished to the favorable Underwriters, such counsel’s written opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as intellectual property counsel to the Company, in form addressed to the Representative and substance reasonably satisfactory to counsel for dated the Underwriters.
(g) On each Closing Date or the Option Closing Date, as applicable, in substantially the form attached hereto as Exhibit C.
(h) The Representative shall have received on each Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the favorable tax Representative, an opinion, addressed to the Representative and dated as of such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, such documents as tax counsel they request for the Company, in form and substance reasonably satisfactory enabling them to counsel for the Underwriterspass upon such matters.
(hi) All proceedings taken in connection with the sale of the Firm Shares Securities and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(ij) The Representative shall have received copies of the Lock-up Up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jk) The Shares and Warrant Shares shall have been approved for listing on the The NASDAQ Capital Market, subject only to official notice of issuance.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth in or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(lm) On the Firm Shares Closing DateIf a filing has been made with FINRA, FINRA shall have confirmed that it has not raised any no objection with respect to the fairness and reasonableness of the underwriting terms and agreements arrangements in connection with the Offeringissuance and sale of the Securities.
(mn) The Representative shall have received on each Closing Date a certificate addressed to the Representative and dated such Closing Date, of the Company’s Vice President, Regulatory Affairs and Compliance, in a form reasonably satisfactory to the Representative with respect to the regulatory affairs of the Company.
(o) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
(p) The Company shall have duly and validly executed and delivered the warrant agreement in respect of the Warrants, which shall have been countersigned by the warrant agent in respect of the Warrants, and a copy of such warrant agreement shall have been delivered to the Representative (the “Warrant Agreement”).
Appears in 2 contracts
Samples: Underwriting Agreement (Galena Biopharma, Inc.), Underwriting Agreement (Galena Biopharma, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations obligation of the Underwriters to purchase offer and sell the Shares are Securities and the Option Securities is subject to each the accuracy (as of the date hereof, and as of the Closing Dates) of and compliance with the representations and warranties of the Company to the performance by it of its agreement and obligations hereunder and to the following terms and additional conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the The Registration Statement shall be in effect have become effective as and no proceedings for such purpose shall be pending before or threatened when cleared by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative you shall have received notice thereof, on each Closing Date a certificate, addressed or prior to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) closing date no stop order suspending the effectiveness of the Registration Statement has Prospectus shall have been issued and, to their knowledge, and no proceedings for that or similar purpose shall have been instituted or are pending shall be pending, or, to your knowledge or to the knowledge of the Company, shall be contemplated by the Commission; any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriter; and qualification, under the Securities Act; and (v) there has not occurred any material adverse change in the assetssecurities laws of such states as you may designate, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities issue and their Subsidiaries considered as a wholesale of the Securities upon the terms and conditions herein set forth or contemplated and containing no provision unacceptable to you shall have been secured, and no stop order shall be in effect denying or suspending effectiveness of such qualification nor shall any stop order proceedings with respect thereto be instituted or pending or threatened under such law.
(eb) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the On any closing date of this Agreementand, in form and substance reasonably satisfactory to the Representative, 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 letter referred to in subparagraph (iii), as of the Registration Statement and date hereof, you shall have received:
(i) the Disclosure Packageopinion, and (ii) on each Closing Datetogether with such number of signed or facsimile copies of such opinion as you may reasonably request, a signed letter from the Auditor addressed to you by the Representative and dated the date of such Closing Date(s)Milling Law Offices, in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to the Underwriter and Willxxx X. Xxxxxx, Xxq., counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by Underwriter, dated each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Marketsuch closing date, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.effect that:
Appears in 2 contracts
Samples: Underwriting Agreement (Weststar Environmental Inc), Underwriting Agreement (Weststar Environmental Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Representatives and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative Representatives and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives 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 and the Prospectus.
(f) On each Closing Date, the Representative Representatives shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx Xxxxxxx & Fxxxx PLCXxxxxxx, P.C., as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative Representatives shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx Xxxxxxx & Fxxxx PLCXxxxxxx, P.C., as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) On each Closing Date, there shall have been furnished to the Underwriters the negative assurance letter of XxXxxxxx & English, LLP, counsel to the Underwriters, dated such Closing Date, as applicable, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives and their counsel.
(ij) The Representative Representatives shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(jk) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(kl) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the RepresentativeRepresentatives’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(mn) The Company shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
Appears in 2 contracts
Samples: Underwriting Agreement (Wheeler Real Estate Investment Trust, Inc.), Underwriting Agreement (Wheeler Real Estate Investment Trust, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company Company, in such capacity, to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeCompany.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Ellenoff Xxxxxxxx & Schole LLP, counsel for the favorable opinionCompany, an opinion and written negative assurances statement, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative and its legal counsel.
(g) On each Closing Date, the The Representative shall have received the favorable tax opinionon each Closing Date from Xxxxxxx and Xxxxxx LLP, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax special intellectual property counsel for the Company, an opinion and written negative assurances statement, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative and its legal counsel.
(h) The Representative shall have received on each Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Representative, an opinion, addressed to the Representative and dated such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of such documents as they request for enabling them to pass upon such matters.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jk) The Shares shall have been approved for listing quotation on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that materially affects or could reasonably be expected to materially affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole Company that makes it impractical or inadvisable in the Representative’ ’s reasonable judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On As of the Firm Shares Closing Datedate hereof, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
(o) The corporate conversion shall have been consummated (as described in the Registration Statement, Statutory Prospectus and Prospectus) and all rights and obligations of Dipexium Pharmaceuticals, LLC shall be assumed by the Company.
Appears in 2 contracts
Samples: Underwriting Agreement (Dipexium Pharmaceuticals, Inc.), Underwriting Agreement (Dipexium Pharmaceuticals, LLC)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives, and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representatives of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (viv) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Representatives and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, 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 Statement, the General Disclosure Package and the Disclosure PackageProspectus, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative Representatives and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives 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 Statement, the General Disclosure Package and the Prospectus, provided, that such letter delivered on the Firm Shares Closing Date and as of each Option Shares Closing Date (if any), shall use a “cut-off” date no more than two business days prior to the Firm Shares Closing Date and each Option Shares Closing Date (if any).
(f) On The Representatives shall have received on and as of (i) the date hereof and (ii) each Closing Date, a certificate of the Representative shall have received chief financial officer of the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to Company confirming certain financial information included in the CompanyGeneral Disclosure Package and the Prospectus, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentatives.
(g) On each Closing Date, the Representative The Representatives shall have received the favorable tax opinionon each Closing Date from Xxxxx Xxxx & Xxxxxxxx LLP, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax U.S. counsel for the Company, an opinion and negative assurance letter, addressed to the Representatives and dated such Closing Date in form and substance reasonably satisfactory to the Representatives.
(h) The Representatives shall have received on each Closing Date from Meitar, Law Offices, Israeli counsel for the Company, an opinion and negative assurance letter, addressed to the Representatives and dated such Closing Date in form and substance reasonably satisfactory to the Representatives.
(i) [Reserved.]
(j) The Representatives shall have received on each Closing Date from White & Case LLP, U.S. counsel for the Underwriters, an opinion and negative assurance letter, addressed to the Representatives and dated such Closing Date in form and substance reasonably satisfactory to the Representatives.
(hk) The Representatives shall have received on each Closing Date from Gornitzky & Co., Israeli counsel for the Underwriters, an opinion, addressed to the Representatives and dated such Closing Date in form and substance reasonably satisfactory to the Representatives.
(l) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives, and their counsel.
(im) The Representative Representatives shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jn) The Shares shall have been approved for listing on The Nasdaq Global Select Market and the NASDAQ Capital MarketTASE, subject only to official notice of issuanceissuance and counsel to the several Underwriters shall have received a copy of said approval of the TASE on or prior to the Firm Shares Closing Date.
(ko) Subsequent to The Representatives shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the share capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company or any of its subsidiaries that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company or any of its subsidiaries shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of its subsidiaries or any of their properties that is material to the Transaction Entities Company or any of its subsidiaries or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the RepresentativeRepresentatives’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lp) On No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Firm Shares Closing DateDate or an Option Shares Closing Date (if any), FINRA prevent the issuance or sale of the Shares; and no injunction or order of any federal, state or foreign, including Israeli, court shall have confirmed been issued that it has not raised any objection with respect to the fairness and reasonableness would, as of the underwriting terms and agreements in connection with Closing Date or an Option Shares Closing Date (if any), prevent the Offeringissuance or sale of the Shares.
(mq) The Representatives shall have received on or prior to each Closing Date satisfactory evidence of the good standing of the Company in its jurisdiction of organization and its good standing as a foreign entity in such other jurisdictions as the Representatives may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(r) The Company shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
Appears in 2 contracts
Samples: Underwriting Agreement (Perion Network Ltd.), Underwriting Agreement (Perion Network Ltd.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Units are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, Prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, Prospectus and the General Disclosure Package, and any individual Issuer Free Writing Prospectus Package and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, includedPackage did not include, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries Company considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Representatives and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative Representatives and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives 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 and the Prospectus.
(f) On each Closing Date, the Representative The Representatives shall have received on each Closing Date from Xxxxxxxx & Xxxxxx, LLP, counsel for the favorable Company, an opinion, addressed to the Representatives and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel in a customary form reasonably acceptable to the CompanyRepresentatives.
(g) The Representatives shall have received on each Closing Date from Xxxxxxxxx Traurig, LLP, counsel for the Representatives, an opinion, addressed to the Representatives and dated such Closing Date, in form and substance reasonably satisfactory acceptable to the Representatives, and such counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. To the favorable tax opinionextent deemed advisable by such counsel, dated such counsel may rely as to matters of fact on certificates of responsible officers of the Company and public officials and on the opinions of other counsel satisfactory to the Representatives as to matters which are governed by laws other than the laws of the State of New York, the General Corporation Law of the State of Delaware and the Federal laws of the United States; provided that such counsel shall state that in their opinion the Underwriters and they are justified in relying on such other opinions. Copies of such Closing Datecertificates and other opinions shall be furnished to the Representatives. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form representatives of the Representatives and substance reasonably satisfactory to representatives of the independent certified public accountants of the Company, at which conferences the contents of the Registration Statement and the Prospectus and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the Underwritersaccuracy, completeness or fairness of the statements contained in the Registration Statement and the Prospectus (except as specified in the foregoing opinion), on the basis of the foregoing, no facts have come to the attention of such counsel which lead such counsel to believe that (i) the Registration Statement at the time it became effective (except with respect to the financial statements and notes and schedules thereto and other financial data, 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, or that the Prospectus as amended or supplemented (except with respect to the financial statements, notes and schedules thereto and other financial data, as to which such counsel need make no statement) on the date thereof and as of the date hereof contained or contains 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 (ii) the Statutory Prospectus, when considered together with the price to the public and the number of Units as set forth on the cover page of the Prospectus, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading.
(h) All proceedings taken in connection with the sale of the Firm Shares Units and the Option Shares Units as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives, and their counsel.
(i) The Representative Company shall have received delivered to the Representatives executed copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV heretoTrust Agreement, the Warrant Agreement, the Forward Purchase Agreement, the Stock Escrow Agreement, the Cash Escrow Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters, the Registration Rights Agreement, the Business Combination Marketing Agreement and the Administrative Services Agreement.
(j) The Shares shares of Common Stock, Units and Warrants shall have been approved for listing on the NASDAQ Capital MarketNasdaq, subject only to official notice of issuance.
(k) Subsequent to The Representatives shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties Company that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (viv) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole Company that makes it impractical or inadvisable in the RepresentativeRepresentatives’ judgment to proceed with the purchase or offering of the Shares Units as contemplated hereby.
(l) On Prior to the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Units.
(m) The Company shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
(n) The Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account,
Appears in 2 contracts
Samples: Underwriting Agreement (Pure Acquisition Corp.), Underwriting Agreement (Pure Acquisition Corp.)
Conditions of the Underwriters’ Obligations. The obligations of the several Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares hereunder are subject to each the accuracy of the representations and warranties of the Company, Caribiner and the Selling Stockholders herein contained, to the performance by the Company, Caribiner and the Selling Stockholders of their respective obligations hereunder in all material respects, and to the following terms and further conditions:
(a) Notification that the The Registration Statement has shall have become effective shall have been received by not later than 5:30 P.M. on the Representative date hereof (and in the Prospectus shall have been timely filed case of the Rule 462(b) Registration Statement, if applicable, not later than 10:00 p.m. on the date hereof), or with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) consent of the Rules shall have been timely filed with Representatives, at a later time and date, not later, however, than 5:30 P.M. on the Commission first business day following the date hereof, or at such later time and date as may be approved by a majority in accordance with such rule.
(b) No order preventing or suspending interest of the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect Underwriters; and at Closing Time no stop order suspending the effectiveness of the Registration Statement shall be in effect and no have been issued under the 1933 Act or proceedings for such purpose shall be pending before or therefor initiated or, to the knowledge of the Company, threatened by the Commission, and any requests for additional information request on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) for additional information shall have been complied with to the reasonable satisfaction of counsel to the Commission and the RepresentativeUnderwriters. If the Company has and the Selling Stockholders have elected to rely upon Rule 430A430A or Rule 434 of the 1933 Act Regulations, Rule 430A the price of the Securities and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A or Rule 434 shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed time period period, and prior to Closing Time, the Company shall have provided evidence satisfactory to the Underwriters Representatives of such timely filing, or a post-effective amendment providing such information shall have been filed as promptly filed as practicable and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of 430A under the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date1933 Act Regulations.
(db) At Closing Time, the Representatives shall have received:
(1) The Representative shall have received on each favorable opinion, dated as of Closing Date a certificate, addressed to the Representative and dated such Closing DateTime, of Xxxxxxx Xxxx & Xxxxx, LLP, special counsel for the chief executive or chief operating officer Company, Caribiner and the chief financial officer or chief accounting officer of Selling Stockholders, in form and substance reasonably satisfactory to counsel for the Company Underwriters, to the effect that: :
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the representations, warranties and agreements laws of the Company in this Agreement were true and correct when made and are true and correct as state of such Closing Date; Delaware.
(ii) the The Company has performed the corporate power and authority to own, lease and operate its properties and to conduct its business as described in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and the Prospectus did not includeand to enter into and perform its obligations under this Agreement and the Pricing Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing as a foreign corporation in each jurisdiction in which such qualification is required, and as whether by reason of the Applicable Timeownership or leasing of property or the conduct of business, neither (i) except where the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit failure so to state a material fact required qualify or to be stated therein or necessary to make the statements thereinin good standing would not have a Material Adverse Effect.
(iv) The authorized, in light issued and outstanding capital stock of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been Company is as set forth in the Prospectus under the caption "Capitalization" (except for subsequent issuances, if any, pursuant to this Agreement); the shares of issued and outstanding capital stock of the Company (including, without limitation, the Common Stock), including the Securities to be purchased by the Underwriters from the Selling Stockholders, have been duly authorized and validly issued and are fully paid and non-assessable; no holder of Common Stock is or will be subject to personal liability by reason of being such a supplement holder; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or otherwise required an amendment other similar rights, if any, of any stockholder or warrantholder of the Company arising by operation of law, under the charter or by-laws of the Company or any of its subsidiaries or, to the best of such counsel's knowledge, under any agreement to which the Company or any of its subsidiaries is a party.
(v) The Securities to be purchased by the Underwriters from the Company have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth in the Pricing Agreement, will be validly issued and fully paid and non-assessable and no holder of the Securities is or will be subject to personal liability by reason of being such a holder.
(vi) The issuance and sale of the Securities by the Company and the sale of the Securities by the Selling Stockholders are not subject to preemptive or other similar rights arising by operation of law or under the charter or by-laws of the Company or, to the best of such counsel's knowledge, any agreement to which the Company is a party.
(vii) Each of Caribiner, IHC and ETC (collectively, the "US Material Subsidiaries") has been duly incorporated and is validly existing as a corporation or limited liability company, as the case may be, in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and, in the case of Caribiner, to enter into and perform its obligations under this Agreement, and is duly qualified as a foreign corporation to transact business and is in good standing 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 or to be in good standing would not have a Material Adverse Effect; all of the issued and outstanding capital stock or limited liability company interests, as the case may be, of each such US Material Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned, by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, Encumbrances, claim or equity; and no holder of any capital stock of any subsidiary is or will be subject to personal liability by reason of being such a holder and none of such shares was issued in violation of the preemptive rights of any stockholder or warrantholder of such US Material Subsidiary arising by operation of law, under the charter or by-laws of such US Material Subsidiary or, to the best of such counsel's knowledge, under any agreement to which the Company or any US Material Subsidiary is a party.
(viii) Except as disclosed in or specifically contemplated by the Prospectus, to the best of such counsel's knowledge, there are no outstanding options, warrants or other rights calling for the issuance by the Company or any US Material Subsidiary of, and no commitments, obligations, plans or arrangements to which the Company or any US Material Subsidiary is a party to issue, any shares of capital stock of the Company or capital stock or limited liability company interests, as the case may be, of any US Material Subsidiary or any security convertible into or exchangeable for capital stock of the Company or capital stock or limited liability company interests, as the case may be, of any US Material Subsidiary.
(ix) To the best of such counsel's knowledge, except as disclosed in or specifically contemplated by the Prospectus, there are no persons with registration or other similar rights to have any securities registered pursuant to the Registration StatementStatement or otherwise registered by the Company under the 1933 Act; and, to the General Disclosure Package or best knowledge of such counsel, neither the Prospectusfiling of the Registration Statement nor the offering of the Securities as contemplated by this Agreement gives rise to any rights relating to the registration of any securities of the Company.
(x) Each of this Agreement and (in the case of the Company) the Pricing Agreement has been duly authorized, executed and delivered by the Company and Caribiner.
(xi) The Registration Statement is effective under the 1933 Act; (ivany required filing of the Prospectus pursuant to Rule 424(b) under the 1933 Act has been made in the manner and within the time period required by Rule 424(b), and, to the best of such counsel's knowledge and information, no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in 1933 Act or proceedings therefor initiated or threatened by the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeCommission.
(exii) The Representative shall have received: At the time the Registration Statement became effective and at the Representation Date, the Registration Statement and the Prospectus (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to other than the financial statements and certain supporting schedules, if any, and other financial information contained included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations; and, to the best of such counsel's knowledge, all material contracts, licenses, loan agreements, leases or other agreements or instruments which are required to be described in or filed as exhibits to the Registration Statement by the 1933 Act or by the 1933 Act Regulations have been described in or filed as exhibits to the Registration Statement as so required.
(xiii) The Common Stock conforms, in all material respects, as to matters of law to the description thereof in the Registration Statement and the Disclosure PackageProspectus and the form of certificate used to evidence the Common Stock complies with all applicable statutory requirements, with any applicable requirements of the certificate of incorporation and by-laws of the Company and with the requirements of the NYSE.
(xiv) No filing with, or consent, approval, authorization, order, registration, qualification or decree of, any court or governmental authority or body in the United States, or any state or territory thereof, is necessary or required to be obtained by the Company or Caribiner or (to the best of such counsel's knowledge, without independent inquiry) any of the Selling Stockholders for the performance by the Company, Caribiner and each of the Selling Stockholders of its respective obligations hereunder, or in connection with the offer or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement and (ii) on each Closing Date, a signed letter from in the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information case of the type ordinarily included Company and each of the Selling Stockholders) the Pricing Agreement, except such as may be required under the 1933 Act or the 1933 Act Regulations or state securities laws.
(xv) The execution, delivery and performance of this Agreement and (in accountants’ “comfort letters” to underwriters with respect to the financial statements case of the Company) the Pricing Agreement, the issuance and certain financial information contained delivery of the Securities and the consummation of the transactions contemplated herein, therein and in the Registration Statement have been duly authorized by the Company and Caribiner and will not conflict with or constitute a breach of, or default under, or result in the Prospectus.
(f) On each Closing Datecreation or imposition of any Encumbrances upon the Securities or any revenues, property or assets of the Representative shall have received Company or any of the favorable opinionUS Material Subsidiaries pursuant to any applicable treaty, dated as law, rule, administrative regulation, judgement or order of any governmental agency or body or any administrative or court decree or to the best of such Closing Datecounsel's knowledge (in the case of the Selling Stockholders, without independent inquiry) any contract, indenture, mortgage, loan agreement, note, license, lease or other instrument or agreement to which the Company or any of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLCthe US Material Subsidiaries or any of the Selling Stockholders is a party or by which any of them may be bound, as or to which any of the property or assets of the Company or any of the US Material Subsidiaries or any of the Selling Stockholders is subject, nor will such actions result in any violation of the provisions of the charter or by-laws of the Company or any applicable treaty, law, rule, administrative regulation, judgment or order of any governmental agency or body or any administrative or court decree known to such counsel to be applicable to the Company, in form and substance each case (except in the case of the Securities) where the conflict, breach, default, imposition, Encumbrances or violation, consid ered alone or taken together with all such other conflicts, breaches, defaults, imposi tions, Encumbrances or violations, could be reasonably satisfactory expected to counsel for the Underwritershave a Material Adverse Effect.
(gxvi) On each Closing Date, To the Representative shall have received the favorable tax opinion, dated as best of such Closing Datecounsel's knowledge, there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLCits subsidiaries is a party, as tax counsel for or to which the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock property of the Company or any material change of its subsidiaries is subject, before or brought by any court or governmental agency or body, which, singly or in the indebtedness (other than in the ordinary course of business) of the Transaction Entitiesaggregate, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a any Material Adverse Effect, (iv) no legal Effect or governmental action, suit or proceeding affecting adversely affect the Transaction Entities or any consummation of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted and the Pricing Agreement or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial performance by the Company of its obligations hereunder or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated herebythereunder.
(lxvii) On The information in the Firm Shares Closing DateRegistration Statement and Prospectus under the captions "Description of Capital Stock," "Management" (except "Management-Executive Officers, FINRA shall have confirmed Directors and Key Management Personnel" and "-- Executive Compensation)", "Certain Relationships and Transactions with Related Persons" (except that it has not raised any objection with respect to "Certain Relationships and Related Transactions with Related Persons-- Advances to Xxxxxxx X. Xxxxxxx" such opinion may be to the fairness best of such counsel's knowledge) and reasonableness "Shares Eligible for Future Sale" and, in the Registration Statement under item 14, to the extent that it constitutes matters of law, summaries of legal matters, legal documents or legal proceedings, or legal conclusions, has been reviewed by them and is correct in all material respects; to the underwriting terms best of such counsel's knowledge, there are no statutes or regulations, and agreements in connection with no legal or governmental actions, suits or proceedings pending or threatened against the Offering.
(m) The Company shall have furnished or caused any of its subsidiaries that are required to be furnished to described in the Representative such further customary certificates or documents Prospectus that are not described as the Representative shall have reasonably requestedrequired.
Appears in 2 contracts
Samples: Purchase Agreement (Caribiner International Inc), Purchase Agreement (Caribiner International Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Securities are subject to each of the following terms and conditions:
(a) Notification that the The Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d3(e) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have reasonably determined, and advised the Company, that the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto contains an untrue statement of fact which, in the Representative’s reasonable opinion, is material, or omits to state a fact which, in the Representative’s reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(e) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus there has not occurred been any material adverse change Material Adverse Effect or any event that is likely to result in a Material Adverse Effect, whether or not arising from transactions in the assets, properties, condition, financial or otherwise, or in the results ordinary course of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholebusiness.
(ef) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor and Mxxxxx LLP addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor and Mxxxxx LLP addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(fg) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx Fulbright & Fxxxx PLCJxxxxxxx LLP, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(gh) On each Closing Date, the Representative shall have received the favorable tax intellectual property legal opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax from intellectual property legal counsel for to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(hi) On each Closing Date, there shall have been furnished to the Underwriters the negative assurance letter of Hxxxxx Xxxxxxx & Exxxx LLP, counsel to the Underwriters, dated such Closing Date, as applicable, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters.
(j) All proceedings taken in connection with the sale of the Firm Shares Securities and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(ik) The Representative shall have received copies of the Lock-up Agreements in form and substance reasonably satisfactory to counsel for the Underwriters executed by each entity or person listed on Schedule IV III hereto.
(jl) The Shares Securities shall have been approved for listing on the NASDAQ Capital Market and satisfactory evidence of such action shall have been provided to the Representative. The Company shall have taken no action designed to, or likely to have the effect of terminating the registration of the Common Stock and Warrants under the Exchange Act or delisting or suspending from trading the Common Stock and Warrants from the NASDAQ Capital Market, subject only to official notice nor has the Company received any information suggesting that the Commission or NASDAQ Capital Market is contemplating terminating such registration or listing. The Shares, the Warrants and shares of issuanceCommon Stock underlying the Warrants and Representative’s Warrants shall be DTC eligible.
(km) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany or its subsidiaries, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(ln) On the Firm Shares Securities Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(mo) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as required by this Agreement, the obligations of the Underwriters to consummate the Closing hereunder may be cancelled by the Representative after notice of such cancellation shall have be given to the Company in writing and the Company shall have been given a reasonable period of time to satisfy such condition (if such condition is capable of being satisfied).
Appears in 2 contracts
Samples: Underwriting Agreement (Applied Dna Sciences Inc), Underwriting Agreement (Applied Dna Sciences Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or “free writing prospectus” (as defined in Rule 405 of the Rules), shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct in all material respects when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive officer or chief operating officer and the chief financial officer or chief accounting officer of the Company Company, in such capacity, to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct in all material respects when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they such officers have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, Package and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not includeopinion, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus and which event is not described in the Registration Statement, the Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeMaterial Adverse Effect.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each Closing Date, a signed bringdown letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from CKR Law LLP, counsel for the favorable opinionCompany, an opinion and written negative assurances statement, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative and its legal counsel.
(g) On each Closing Date, the The Representative shall have received the favorable tax opinionon each Closing Date from Cxxxx & Gxxxxxx, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax intellectual property counsel for the Company, an opinion and written negative assurances statement, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative and their legal counsel.
(h) The Representative shall have received on each Closing Date from Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, counsel for the Representative, an opinion, addressed to the Representative and dated such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of such documents as they reasonably request for enabling them to pass upon such matters.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its legal counsel.
(ij) The Representative shall have received copies enforceable written lock-up agreements in the form attached to this Agreement as Exhibit A attached hereto (“Lock-Up Agreement”) executed by all directors, officers and holders of more than 5% of the Lock-up Agreements executed by each entity or person listed on Schedule IV heretooutstanding equity securities of the Company.
(jk) The Shares shall have been approved for listing on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance. A registration statement shall have been filed on Form 8-A pursuant to Section 12 of the Exchange Act, which registration statement shall comply in all material respects with the Exchange Act.
(kl) Subsequent to Since the execution and delivery date of this Agreement or, if earlier, the dates as most recent financial statements of which information is given the Company included in the Registration Statement, the General Disclosure Package or Package, the Statutory Prospectus and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, Company; (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could would reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, Company; (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to would have a Material Adverse Effect, ; (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that materially affects or could would reasonably be expected to materially affect the transactions contemplated by this Agreement shall have been instituted or threatened threatened; and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole Company that makes it impractical or inadvisable in the Representative’ ’s reasonable judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On As of the Firm Shares Closing Datedate hereof, FINRA shall have confirmed that it has not raised any unresolved objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect the business or operations of the Company; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect the business or operations of the Company.
(o) As of each Closing Date, the Representative shall have received a certificate of the Company signed by the Secretary of the Company, certifying: (i) that the Certificate of Incorporation and bylaws of the Company are true and complete, have not been modified and are in full force and effect; (ii) that the resolutions relating to the Offering are in full force and effect and have not been modified; and (iii) as to the incumbency of the officers of the Company to execute and deliver this Agreement and the Registration Statement.
(p) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 2 contracts
Samples: Underwriting Agreement (Protea Biosciences Group, Inc.), Underwriting Agreement (Protea Biosciences Group, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Xxxxxx Voekler Cxxxxxxxxx Xxxxxxxxxx & Fxxxx Xxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Xxxxxx Voekler Cxxxxxxxxx Xxxxxxxxxx & Fxxxx Xxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance, and will commence trading on the NASDAQ Capital Market at the Firm Shares Closing Date.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
(n) The Company shall have filed the Articles Supplementary with the SDAT.
(o) The Company shall have delivered to the Representative a copy of the duly authorized and executed Operating Partnership Agreement Amendment.
Appears in 2 contracts
Samples: Underwriting Agreement (Medalist Diversified REIT, Inc.), Underwriting Agreement (Medalist Diversified REIT, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations obligation of the Underwriters to purchase offer and sell the Shares are Securities and the Option Securities is subject to each the accuracy (as of the date hereof, and as of the Closing Dates) of and compliance with the representations and warranties of the Company to the performance by it of its agreement and obligations hereunder and to the following terms and additional conditions:
(a) Notification that the The Registration Statement has shall have become effective as and when cleared by the Commission, and you shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and notice thereof, on or prior to any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and closing date no stop order suspending the effectiveness of the Registration Statement Prospectus shall be in effect have been issued and no proceedings for such that or similar purpose shall have been instituted or shall be pending before pending, or, to your knowledge or threatened to the knowledge of the Company, shall be contemplated by the Commission, and ; any requests for additional information request on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) for additional information shall have been complied with to the reasonable satisfaction of counsel to the Commission Underwriter; and qualification, under the Representative. If securities laws of such states as you may designate, of the Company has elected issue and sale of the Securities upon the terms and conditions herein set forth or contemplated and containing no provision unacceptable to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A you shall have been transmitted secured, and no stop order shall be in effect denying or suspending effectiveness of such qualification nor shall any stop order proceedings with respect thereto be instituted or pending or threatened under such law.
(b) On any closing date and, with respect to the Commission for filing pursuant letter referred to Rule 424(b) within in subparagraph (iii), as of the prescribed time period and the Company date hereof, you shall have provided evidence received:
(i) the opinion, together with such number of signed or facsimile copies of such opinion as you may reasonably request, addressed to you by Xxxxxxxxxxx and Xxxxxxxx, counsel for the Company, in form and substance reasonably satisfactory to the Underwriters of such timely filingUnderwriter and Xxxxxxx X. Xxxxxx, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing DateEsq.
(d) The Representative shall have received on each Closing Date a certificate, addressed counsel to the Representative and Underwriter, dated each such Closing Dateclosing date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: :
(iA) The Company has been duly incorporated and is a validly existing corporation in good standing under the representationslaws of the jurisdiction in which it is incorporated and has all necessary corporate power and authority to carry on its business as described in the Prospectus.
(B) The Company is qualified to do business in each jurisdiction in which conducting its business requires such qualification, warranties except where the failure to be so qualified would not have a material adverse effect on the Company's business or assets.
(C) The Company has the full corporate power and agreements authority to enter into this Agreement, the Representative's Warrant Agreement and to consummate the transactions provided for therein and each such Agreement has been duly and validly authorized, executed and delivered by the Company. Each of this Agreement and the Representative's Warrant Agreement, assuming due authorization, execution and delivery by each other party thereto, constitutes a legal, valid and binding agreement of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) enforceable against the Company has performed in all material respects all covenants accordance with its terms, subject to bankruptcy, insolvency or similar laws governing the rights of creditors and agreements to general equitable principles, and satisfied all conditions contained herein; (iii) they have carefully examined provided that no opinion need be given as to the enforceability of any indemnification or contribution provisions, and none of the Company's execution or delivery of this Agreement, or the Representative's Warrant Agreement, its performance hereunder or thereunder, its consummation of the transactions contemplated herein or therein, or the conduct of its business as described in the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus andamendments or supplements thereto, conflicts with or will conflict with or results or will result in their opinion any material breach or violation of any of the terms or provisions of, or constitutes or will constitute a material default under, or result in the creation or imposition of any material lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction of any kind whatsoever upon, any property or assets (tangible or intangible) of the Company pursuant to the terms of (A) the articles of incorporation or by-laws of the Company, (B) to the knowledge of such counsel, any material license, contract, indenture, mortgage, deed of trust, voting trust agreement, stockholders' agreement, note, loan or credit agreement or any other agreement or instrument to which the Company is a party or by which it is or may be bound, or (C) to the knowledge of such counsel, any statute, judgment, decree, order, rule or regulation applicable to the Company, whether domestic or foreign.
(D) The Company had authorized and outstanding capital stock as set forth in the Prospectus under the heading "Capitalization" as of the Effective Date date set forth therein, and all of such issued and outstanding shares of capital stock have been duly and validly authorized and issued, and to the knowledge of such counsel are fully paid and nonassessable, and to the knowledge of such counsel no stockholder of the Company is entitled to any preemptive rights to subscribe for, or purchase shares of the capital stock and to the knowledge of such counsel none of such securities were issued in violation of the preemptive rights of any holders of any securities of the Company.
(E) To the knowledge of such counsel, the Company is not a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities, except for this Agreement, the Representative's Warrant Agreement, and except as described in the Prospectus. The Common Stock, and the Representative's Warrants each conforms in all material respects to the respective descriptions thereof contained in the Prospectus. The outstanding shares of Common Stock and the Representative's Securities, upon issuance and delivery and payment therefore in the manner described herein, the Warrant Agreement and the Representative Agreement, as the case may be, will be, duly authorized, validly issued, fully paid and nonassessable. There are no preemptive or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company's articles of incorporation, by-laws, other governing documents or any agreement or other instrument known to such counsel to which the Company is a party or by which it is bound except as stated in the prospectus.
(F) The certificates representing the Securities comprising the Common Stock are in due and proper form and the Representative's Warrant has been duly authorized and reserved for issuance and when issued and delivered in accordance with the respective terms of the Warrant Agreement and Representative's Warrant Agreement, respectively, will duly and validly issued, fully paid and nonassessable.
(G) To the knowledge of such counsel, there are no claims, suits or other legal proceedings pending or threatened against the Company in any court or before or by any governmental body which might materially affect the business of the Company or the financial condition of the Company as a whole, except as set forth in or contemplated by the Prospectus.
(H) Based on oral and/or written advice from the staff of the Commission, the Registration Statement has become effective and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Prospectus is in effect and no proceedings for that purpose are pending before, or threatened by, federal or by a state securities administrator
(I) To the knowledge of such counsel, there are no legal or governmental proceedings, actions, arbitrations, investigations, inquiries or the like pending or threatened against the Company of a character required to be disclosed in the Prospectus which have not been so disclosed, questions the validity of the capital stock of the Company or this Agreement or the Representative's Warrant Agreement or might adversely affect the condition, financial or otherwise, or the prospects of the Company or which could adversely affect the Company's ability to perform any of its obligations under this Agreement, or the Representative's Warrant Agreement.
(J) To such counsel's knowledge, there are no material agreements, contracts or other documents known to such counsel required by the Act to be described in the Registration Statement and the Prospectus not filed as exhibits to the Registration Statement and the Prospectus , and to such counsel's knowledge (A) the exhibits which have been filed are correct copies of the documents of which they purport to be copies; (B) the descriptions in the Registration Statement and the Prospectus and any supplement or amendment thereto of contracts and other documents to which the Company is a party or by which it is bound, including any document to which the Company is a party or by which it is bound incorporated by reference into the Prospectus and any supplement or amendment thereto, are accurate in all material respects and fairly represent the information required to be shown by Form SB-2.
(K) No consent, approval, order or authorization from any regulatory board, agency or instrumentality having jurisdiction over the Company, or its properties (other than registration under the Act or qualification under state or foreign securities law or approval by the NASD) is required for the valid authorization, issuance, sale and delivery of the Securities, the Option Securities or the Representative's Warrant.
(L) The statements in the Prospectus under "Risk Factors- Dependence on Key Personnel" "Management-Limitation of Liability" "Description of the Securities," and "Shares Eligible For Future Sale" have been reviewed by such counsel, and insofar as they refer to statements of law, descriptions of statutes, licenses, rules or regulations or legal conclusions, are correct in all material respects. In addition, such counsel shall state that such counsel has participated in conferences with officials and other representatives of the Company, the Underwriter, Underwriters' Counsel and the independent certified public accountants of the Company, at which such conferences the contents of the Registration Statement and Prospectus did not includeand related matters were discussed, and as although they have not certified the accuracy or completeness of the Applicable Time, neither (i) statements contained in the General Disclosure Package, nor (ii) any individual Issuer Free Writing Registration Statement or the Prospectus, nothing has come to the attention of such counsel which leads them to believe that, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Shares are to be purchased, the Registration Statement and any amendment or supplement, when considered together such documents became effective or were filed with the General Disclosure PackageCommission (other than the financial statements including the notes thereto and supporting schedules and other financial and statistical information derived therefrom, included, as to which such counsel need express no comment) contained any untrue statement of a material fact and did not omit or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or at the Closing Date or any later date on which the Option Shares are to be purchased, as the case may be, the Prospectus and any amendment or supplement thereto (other than the financial statements including the notes thereto and other financial and statistical information derived therefrom, as to which such counsel need express no comment) contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment . Such opinion shall also cover such other matters incident to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package transactions contemplated hereby and the Prospectus) of the Transaction Entities and their Subsidiaries considered offering Prospectus as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as you or counsel to the Company, in form and substance Underwriter shall reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax request. In rendering such opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies extent deemed reasonable by them, such counsel may rely upon certificates of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock officer of the Company or any material change in public officials as to matters of fact of which the indebtedness (other than in the ordinary course maker of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated herebysuch certificate has knowledge.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 2 contracts
Samples: Underwriting Agreement (Genetic Vectors Inc), Underwriting Agreement (Genetic Vectors Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company and the Selling Stockholders contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company and the Selling Stockholders shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, Statement and the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have receivedreceived on each Closing Date a certificate addressed to the Representatives and dated such Closing Date, of each Selling Stockholder, to the effect that: (i) simultaneously with the execution representations, warranties and agreements of each Selling Stockholder in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) each Selling Stockholder has performed all covenants and agreements and satisfied all conditions contained herein; and (iii) each Selling Stockholder has carefully examined the Registration Statement and the Prospectus and, in the opinion of such Selling Stockholder, (A) with respect to the information relating to such Selling Stockholder, as of the Effective Date, the Registration Statement and Prospectus did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 with respect to such Selling Stockholder which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement or the Prospectus.
(f) The Representatives shall have received, at the time this Agreement is executed and on each Closing Date a signed letter from the Auditor KPMG LLP addressed to the Representative Representatives and dated dated, respectively, the date of this AgreementAgreement and each such Closing Date, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives 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 and the Prospectus.
(fg) On each Closing Date, the Representative The Representatives shall have received on each Closing Date from O’Melveny & Xxxxx LLP, counsel for the favorable Company and Xxxxx Xxxxx, as a Selling Stockholder, an opinion, addressed to the Representatives and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, substantially in the form attached hereto as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.Exhibit D.
(gh) On each Closing Date, the Representative The Representatives shall have received on each Closing Date from Buc & Xxxxxxxxx LLP, with respect to certain matters related to the favorable tax Federal Food, Drug, and Cosmetic Act (the “Food and Drug Laws”), an opinion, addressed to the Representatives and dated as of such Closing Date, substantially in the form of Kxxxxx Voekler Cxxxxxxxxx Exhibit E.
(i) The Representatives shall have received on the Firm Shares Closing Date from Xxxxxxx Xxxx & Fxxxx PLCXxxxxxxxx LLP, as tax counsel for the CompanyInstitutional Selling Stockholders, an opinion as to the Institutional Selling Stockholders, addressed to the Representatives and dated such Closing Date, in the form and substance reasonably satisfactory to counsel for the Underwriters.of Exhibit F.
(hj) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives, and their counselcounsel and the Underwriters shall have received from Xxxxxx Godward LLP a favorable opinion, addressed to the Representatives and dated such Closing Date, with respect to the Shares, the Registration Statement and the Prospectus, and such other related matters, as the Representatives may reasonably request, and the Company shall have furnished to Xxxxxx Godward LLP such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(ik) The Representative Representatives shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV III hereto.
(jl) The Shares shall have been approved for listing quotation on the NASDAQ Capital Nasdaq National Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company and each Selling Stockholder shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
Appears in 2 contracts
Samples: Underwriting Agreement (Seracare Life Sciences Inc), Underwriting Agreement (Seracare Life Sciences Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representative, and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, Prospectus and the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, includedPackage did not include, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 Statement, the General Disclosure Package and the Disclosure PackageProspectus, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 Statement, the General Disclosure Package and the Prospectus, provided, that such letter delivered on the Firm Shares Closing Date and as of each Option Shares Closing Date (if any), shall use a “cut-off” date no more than two business days prior to the Firm Shares Closing Date and each Option Shares Closing Date (if any).
(f) On each Closing Date, the The Representative shall have received the favorable opinionon each Closing Date from Akerman LLP, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to for the Company, an opinion and negative assurance letter, addressed to the Representative and dated such Closing Date in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the The Representative shall have received the favorable tax opinionon each Closing Date from Xxxxx & Xxxxxx L.L.P., dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax Nevada local counsel for the Company, an opinion and negative assurance letter, addressed to the Representative and dated such Closing Date in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) The Representative shall have received on each Closing Date from Xxxxx Xxxxx Zedek Xxxxxx Xxxxxx LLP, intellectual property counsel for the Company, an opinion, addressed to the Representative and dated such Closing Date in form and substance reasonably satisfactory to the Representative.
(i) The Representative shall have received on each Closing Date from White & Case LLP, counsel for the Representative, an opinion and negative assurance letter, addressed to the Representative and dated such Closing Date in form and substance reasonably satisfactory to the Representative.
(j) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(ik) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jl) The Shares shall have been approved for listing on the NASDAQ The Nasdaq Capital Market, subject only to official notice of issuance.
(km) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(ln) On or before the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mo) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Firm Shares Closing Date or an Option Shares Closing Date (if any), prevent the issuance or sale of the Shares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date or an Option Shares Closing Date (if any), prevent the issuance or sale of the Shares.
(p) The Representative shall have received on or prior to each Closing Date satisfactory evidence of the good standing of the Company in its jurisdiction of organization and its good standing as a foreign entity in such other jurisdictions as the Representative may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(q) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents (including a Secretary’s Certificate) as the Representative shall have reasonably requested.
Appears in 2 contracts
Samples: Underwriting Agreement (Ondas Holdings Inc.), Underwriting Agreement (Ondas Holdings Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules) shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement shall be true and correct and the representations and warranties of the Company contained in the certificates delivered pursuant to Section 3(d) shall be true and correct in all material respects when made and on and as of each Closing Date as if made on such datedate (provided, that each representation and warranty that contains a materiality qualifier shall be true and correct in all respects). The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative Underwriters and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct in all material respects as of such Closing DateDate (provided, that each representation and warranty that contains a materiality qualifier shall be true and correct in all respects); (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) (1) as of the Effective Date Date, the Registration Statement and did not or will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, (2) as of the date thereof or as of the date hereof, the Prospectus did not includecontain and does not contain 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, and (3) as of the Applicable Time, neither (ix) the General Disclosure Package, nor (iiy) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and did not omit or 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 (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from each of the Auditor Auditors addressed to the Representative Underwriters and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from each of the Auditor Auditors addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Xxxxxxxx & Xxxxxx P.A., counsel for the favorable opinionCompany, an opinion and negative assurance letter, addressed to the Underwriters and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLCsubstantially in the form attached hereto as Exhibit B (which shall be subject to customary assumptions, as counsel to the Companyexceptions, in form limitations and substance reasonably satisfactory to counsel for the Underwritersqualifications).
(g) On each Closing Date, the The Representative shall have received on each Closing Date from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel for the favorable tax Underwriters, an opinion, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLCwith respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel such documents as tax counsel they request for the Company, in form and substance reasonably satisfactory enabling them to counsel for the Underwriterspass upon such matters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance.
(k) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any subsidiary or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany or any of its subsidiaries, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company or its subsidiaries that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company or any subsidiary shall have been sustained that had or could reasonably be expected to have a Material Adverse Effectbe material to the Company or any subsidiary, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company, any of its subsidiaries or any of their respective properties that is material to the Transaction Entities Company or any of its subsidiaries or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the RepresentativeRepresentatives’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement and the obligation of the Underwriters to purchase the Firm Shares or Option Shares, as the case may be, may be terminated by the Underwriters by notice to the Company at any time at or prior to Closing Date, and, except for an intentional or willful breach of this Agreement, such termination shall be without liability of any party to any other party, except as provided by the Underwriters in Section 4(b); provided, however, that Sections 4(b), 5, 6, 7 and 9 shall survive any such termination and remain in full force and effect.
Appears in 2 contracts
Samples: Underwriting Agreement (Asure Software Inc), Underwriting Agreement (Asure Software Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules) shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement shall be true and correct, and the representations and warranties of the Company contained in the certificates delivered pursuant to Section 3(d) shall be true and correct in all material respects, when made and on and as of each Closing Date as if made on such datedate (provided, that each representation and warranty that contains a materiality qualifier shall be true and correct in all respects as of such Closing Date). The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative Underwriters and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct in all material respects as of such Closing Date (provided, that each representation and warranty that contains a materiality qualifier shall be true and correct in all respects as of such Closing Date); (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) (1) as of the Effective Date the Registration Statement and did not or will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, (2) as of the date thereof or as of the date hereof the Prospectus did not includecontain and does not contain 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, and (3) as of the Applicable Time, neither (ix) the General Disclosure Package, nor (iiy) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and did not omit or 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 (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred since the date of this Agreement any material adverse change in the assets, liabilities, properties, condition, condition (financial or otherwise), or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from each of the Auditor Auditors addressed to the Representative Underwriters and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from each of the Auditor Auditors addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Dxx Xxxxxx LLP, counsel for the favorable opinionCompany, an opinion and negative assurance letter, addressed to the Underwriters and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLCsubstantially in the form attached hereto as Exhibit B (which shall be subject to customary assumptions, as counsel to the Companyexceptions, in form limitations and substance reasonably satisfactory to counsel for the Underwritersqualifications).
(g) On each Closing Date, the The Representative shall have received on each Closing Date from Pillsbury Wxxxxxxx Xxxx Xxxxxxx LLP, counsel for the favorable tax Underwriters, an opinion, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLCwith respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel such documents as tax counsel they request for the Company, in form and substance reasonably satisfactory enabling them to counsel for the Underwriterspass upon such matters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Nasdaq Global Market, subject only to official notice of issuance.
(k) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus (except as disclosed in the Registration Statement, the Statutory Prospectus and the Prospectus: ), (i) there shall not have been any material change in the capital stock of the Company or any subsidiary or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany or any of its subsidiaries, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company or its subsidiaries that is not in the ordinary course of business or that could would reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company or any subsidiary shall have been sustained that had or could would reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company, any of its subsidiaries or any of their respective properties that is material to the Transaction Entities Company or any of its subsidiaries or that affects or could would reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, liabilities, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On The Representative shall have received (i) simultaneously with the Firm Shares execution of this Agreement a certificate, addressed to the Underwriters and dated the date of this Agreement, of the chief financial officer of the Company addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative, with respect to certain information contained in the Registration Statement and the General Disclosure Package and (ii) on each Closing Date, FINRA shall have confirmed that it has not raised any objection a certificate of the chief financial officer of the Company addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative, with respect to certain information contained in the fairness Registration Statement and reasonableness of the underwriting terms and agreements in connection with the OfferingProspectus.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement, and the obligation of the Underwriters to purchase the Firm Shares or Option Shares, as the case may be, may be terminated by the Representative by written notice to the Company at any time at or prior to the Closing Date, and, except for an intentional or willful breach of this Agreement, such termination shall be without liability of any party to any other party except as provided in Section 4(b); provided, however, that Sections 4(b), 5, 6, 7 and 9 shall survive any such termination and remain in full force and effect.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company and the Selling Shareholder contained in this Agreement and in the certificates delivered pursuant to Section 3(dSections 4(d) and 4(e) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company and the Selling Shareholder shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of from the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained hereinon its part to be performed or satisfied at or prior to the Closing Date; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative Representatives shall have received, on the date hereof and each Closing Date, a certificate, addressed to the Representatives and dated the date hereof or such Closing Date, as applicable, from the chief financial officer of the Company in the form attached to this Agreement as Exhibit B hereto.
(f) The Representatives shall have received on each Closing Date a certificate, addressed to the Representatives and dated such Closing Date, of the Selling Shareholder, to the effect that: (i) the representations, warranties and agreements of the Selling Shareholder in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Selling Shareholder has performed all covenants and agreements and satisfied all conditions contained herein; and (iii) the Selling Shareholder has carefully examined the Registration Statement, the Prospectus, the General Disclosure Package and any individual Issuer Free Writing Prospectus, and, in the opinion of the Selling Shareholder, (A) with respect to the information relating to the Selling Shareholder, as of the Effective Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 with respect to the Selling Shareholder which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement or the Prospectus.
(g) The Representatives shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor Auditors addressed to the Representative Representatives and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, 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 and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor Auditors addressed to the Representative Representatives and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives containing statements and information of the type ordinarily included in accountants’ “bring-down comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(fh) On The Company shall have requested and caused Gxxxxxxxx Txxxxxx, LLP, counsel for the Company and the Selling Shareholder with respect to U.S. law, to have furnished on the Closing Date to the Representatives their opinion and customary negative assurance letter, each dated the Closing DateDate and addressed to the Representatives to the effect set forth in Exhibits C and D.
(i) The Company shall have requested and caused M&M Bomchil Abogados, counsel for the Representative Company with respect to Argentine law, to have furnished on the Closing Date to the Representatives their opinion or opinions, as the case may be, dated the Closing Date and addressed to the Representatives to the effect set forth in Exhibit E.
(j) The Company shall have requested and caused Souza, Cescon, Barrieu, & Fxxxxx Advogados, counsel for the Company with respect to Brazilian law, to have furnished on the Closing Date to the Representatives their opinion or opinions, as the case may be, dated the Closing Date and addressed to the Representatives to the effect set forth in Exhibit F.
(k) The Company shall have requested and caused Gxxxx & Rxxxxxx, counsel for the Company with respect to Uruguayan law, to have furnished on the Closing Date to the Representatives their opinion or opinions, as the case may be, dated the Closing Date and addressed to the Representatives to the effect set forth in Exhibit G.
(l) The Company shall have requested and caused Consulegis Abogados SA, counsel for the Company with respect to Ecuadorian law, to have furnished on the Closing Date to the Representatives their opinion or opinions as the case may be, dated the Closing Date and addressed to the Representatives to the effect set forth in Exhibit H.
(m) The Company shall have requested and caused Ter-Tachatyan Law Firm, counsel for the Company with respect to Armenian law, to have furnished on the Closing Date to the Representatives their opinion or opinions, as the case may be, dated the Closing Date and addressed to the Representatives to the effect set forth in Exhibit I.
(n) The Company shall have requested and caused White & Case (Europe) LLP, counsel for the Company with respect to Italian law, to have furnished on the Closing Date to the Representatives their opinion or opinions, as the case may be, dated the Closing Date and addressed to the Representatives to the effect set forth in Exhibit J.
(o) The Company shall have requested and caused Axxxx & Overy SCS (Luxembourg), counsel for the Company with respect to Luxembourg law, to have furnished on the Closing Date to the Representatives their opinion or opinions, as the case may be, dated the Closing Date and addressed to the Representatives to the effect set forth in Exhibit K.
(p) The Company shall have requested and caused J&A Garrigues Perú, S. Civil de R.X., counsel for the Company with respect to Peruvian law, to have furnished on the Closing Date to the Representatives their opinion or opinions, as the case may be, dated the Closing Date and addressed to the Representatives to the effect set forth in Exhibit L.
(q) The Representatives shall have received on the favorable opinionClosing Date from Linklaters LLP, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to U.S. counsel for the Underwriters, such U.S. law opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Common Shares, the Registration Statement, the General Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Shareholder shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(gr) On each Closing Date, the Representative The Representatives shall have received on the favorable tax opinionClosing Date from Lxxxxxxxxx XXX, dated as of such Closing DateXxxxxxxxxx, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to Xxxxxxxxxx counsel for the Underwriters, such Luxembourg law opinion, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Common Shares, the Registration Statement, the General Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Shareholder shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(hs) The Representatives shall have received on the Closing Date from Marval, O’Xxxxxxx & Mairal, Argentine counsel for the Underwriters, such Argentine law opinion dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Common Shares, the Registration Statement, the General Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Shareholder shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(t) The Representatives shall have received on the Closing Date from Arlex International CJSC, Armenian counsel for the Underwriters, such Armenian law opinion, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Common Shares, the Registration Statement, the General Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Shareholder shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(u) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives and their counsel.
(iv) The Representative Representatives shall have received copies of the Lock-up Up Agreements executed by each entity or person listed on Schedule IV II hereto. In the event that the Representatives, in their sole discretion, agree to release or waive any restriction set forth in a Lock-Up Agreement for an officer or director of the Company, and provide the Company with notice of the impending release or waiver at least three (3) business days before the effective date of such release or waiver (which release or waiver shall be substantially in the form found at Exhibit A-1 hereto), the Company agrees to announce the impending release or waiver by a press release (which press release shall be substantially in the form of Exhibit A-2 hereto) through a major news service at least two (2) business days before the effective date of the release or waiver.
(jw) The Shares shall have been approved for listing on the NASDAQ Capital MarketNew York Stock Exchange (the “NYSE”), subject only to official notice of issuance.
(kx) Subsequent to The Representatives shall be satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the share capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the RepresentativeRepresentatives’ judgment to proceed with the subscription, purchase or offering of the Shares as contemplated hereby.
(ly) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mz) The Company and the Selling Shareholder shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
Appears in 1 contract
Samples: Underwriting Agreement (Corporacion America Airports S.A.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the any certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from K&L Gates LLP, counsel for the favorable opinionCompany, an opinion and negative assurance statement, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the The Representative shall have received the favorable tax opinionon each Closing Date from OGAWA Professional Corporation, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax intellectual property counsel for the Company, an opinion and negative assurance statement, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersUnderwriter.
(h) The Representative shall have received on each Closing Date from Lxxxxxxxxx Xxxxxxx LLP, counsel for the Representative, an opinion and negative assurance statement, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent The Company shall have submitted a Notification Form: Listing of Additional Shares with the Nasdaq Capital Market with respect to the execution Shares and delivery Nasdaq shall have raised no objection with respect to the listing of this Agreement or, if earlier, the Shares which has not been resolved to the reasonable satisfaction of the Representative on or before the Closing Date.
(l) The Representative shall be reasonably satisfied that since the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On or prior to the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Samples: Underwriting Agreement (Akoustis Technologies, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A430A of the Rules, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430A. If the Company has elected to rely upon Rule 434 of the Rules, a term sheet shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period.
(c) The representations and warranties of the Company and the Selling Stockholders contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company and the Selling Stockholders shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) On or prior to the Firm Shares Closing Date, the Company shall have filed with the Secretary of State of the State of Delaware an amended and restated certificate of incorporation and amended and restated bylaws in the form filed with the Commission as exhibits to the Registration Statement.
(e) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, Statement and the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion opinion, (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(ef) The Representative Representatives shall have received: (i) simultaneously with , at the execution of time this Agreement is executed and on each Closing Date, a signed letter from the Auditor Deloitte & Touche LLP addressed to the Representative Representatives and dated dated, respectively, the date of this AgreementAgreement and each such Closing Date, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives 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 and the Prospectus.
(fg) On each Closing Date, the Representative The Representatives shall have received on each Closing Date from Xxxxxx & Xxxxxxx, counsel for the favorable Company and special counsel for the Selling Stockholders, an opinion, addressed to the Representatives and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, substantially in form and substance reasonably satisfactory to of Exhibit D.
(h) The Representatives shall have received on each Closing Date from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters.
(g) On each Closing Date, such opinion or opinions, addressed to the Representative shall have received the favorable tax opinion, Representatives and dated as of such Closing Date, with respect to the issuance and sale of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLCthe Shares, the Registration Statement, the Prospectus and other related matters as tax the Representatives may require, and the Company shall have furnished to such counsel such documents as they reasonably request for the Company, in form and substance reasonably satisfactory purposes of enabling them to counsel for the Underwriterspass upon such matters.
(hi) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives and their counsel.
(ij) The Representative Representatives shall have received copies of the Lock-up Up Agreements executed by each director and officer of the Company and by each entity or person listed on Schedule IV III hereto.
(jk) The Shares shall have been approved for listing quotation on the NASDAQ Capital Nasdaq National Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company and each Selling Stockholder shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase and pay for the Shares are Notes as provided herein shall be subject to each the accuracy of the representations and warranties of the Company, as of the date hereof and the First Closing Date (as if made on the First Closing Date) and in the case of the Option Notes, as of the date hereof and the Second Closing Date (as if made on the Second Closing Date), to the performance by the Company of its obligations hereunder, and to the satisfaction of the following terms additional conditions on or before the First Closing Date in the case of the Firm Notes and conditionson or before the Second Closing Date in the case of the Option Notes:
(a) Notification that the The Registration Statement has shall have become effective not later than 5:00 P.M. Minneapolis time, on the first full business day following the date of this Agreement, or such later date as shall be consented to in writing by the Underwriters (the "Effective Date"). If the Company has elected to rely upon Rule 430A, the information concerning the price of the Notes and price-related information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been received by transmitted to the Representative SEC for filing pursuant to Rule 424(b) within the prescribed time period, and prior to the Prospectus Closing Date the Company shall have provided evidence satisfactory to the Underwriters of such timely filing (or a post-effective amendment providing such information shall have been timely promptly filed with the Commission and declared effective in accordance with Section 4(a) of this Agreement the 1933 Act and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) and Regulations). No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no stop order suspending the effectiveness thereof shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before Company or the Underwriters, threatened by the Commission, and SEC or any requests state securities commission or similar regulatory body. Any request of the SEC for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission Underwriters and their legal counsel. The NASD, upon review of the Representative. If terms of the Company has elected to rely upon Rule 430Aoffering of the Notes, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall not have been transmitted objected to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties terms of the Company contained in this Agreement and Underwriters' participation in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as offering of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing DateNotes.
(db) The Representative Underwriters shall not have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date been advised that the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing or Prospectus, when considered together with the General Disclosure Packageor any amendment thereof or supplement thereto, included, contains any untrue statement of a material fact and did not omit or omits to state a material fact and which is required to be stated therein or is necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(ec) The Representative Underwriters and Underwriters' counsel shall have received: (i) simultaneously been furnished with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements such documents and information of as 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the ProspectusUnderwriters or their counsel may have requested.
(fd) On each Closing Date, the Representative The Underwriters shall have received the favorable opinionopinion of Andrxxx & Xurtx, X.L.P., dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form Date and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Underwriters and their counsel.
(i) The Representative shall have received copies of counsel and substantially in the Lock-up Agreements executed by each entity or person listed on Schedule IV form set forth in Exhibit A hereto.
(je) The Shares Underwriters shall have been approved for listing on received the NASDAQ Capital Marketopinion of Andrxxx & Xurtx, subject only X.L.P. to official notice certain tax matters described in the Prospectus, dated as of issuanceeach Closing Date and satisfactory in form and substance to the Underwriters and their counsel and substantially in the form set forth in Exhibit B hereto.
(kf) Subsequent to At the time of execution and delivery of this Agreement or, if earlierand also at each Closing Date, the dates as Underwriters shall have received from PricewaterhouseCoopers LLP a letter or letters, dated the date of which information is given delivery thereof, in the Registration Statementform and substance satisfactory to the Underwriters, stating that they are independent public accountants with respect to the General Disclosure Package or Company on a consolidated basis within the Prospectusmeaning of the 1933 Act and that: (i) there shall not have been any material change In their opinion, the Financial Statements included in the capital stock Registration Statement and Prospectus and reported on therein by them comply as to form in all material respects with the applicable accounting requirements of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened 1933 Act and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness related published rules and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.regulations;
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus Prospectus” shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, representations and warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct in all material respects (except for such representatives and warranties qualified by materiality, which representations and warranties shall be true and correct in all respects) as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have each of them has carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in each of their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, Prospectus when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been but was not set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeCompany.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “bring-down comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from each of Xxxxxxxxx Xxxxxxx, P.A. and Meitar Liquornik Xxxx Xxxxxx Tal Law Offices, counsel for the favorable opinionCompany, an opinion and negative assurance statement, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to the Representative. In rendering such opinion, counsel for may rely, to the Underwritersextent they deem such reliance proper, as to matters of fact upon certificates of officers of the Company and of government officials, provided that counsel shall state their belief that they and you are justified in relying thereon.
(g) On each Xxxxxxxx Xxxx & Partners shall have furnished to the Underwriters such counsel’s written opinion and negative assurance statement, as intellectual property counsel to the Company, addressed to the Representative and dated the Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Companyapplicable, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) All proceedings taken in connection with The Representative shall have received on the sale of Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance Representative, an opinion and/or negative assurance statement, addressed to the Representative and their counseldated such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of such documents as they request for enabling them to pass upon such matters.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(j) The Shares shall have been approved for listing quotation on the NASDAQ Capital Market, subject only to official notice of issuance. On or prior to the Firm Shares Closing Date, the Shares shall have been approved for listing on the TASE, subject to a final approval and the payment of listing fees, and the Underwriters shall have received a copy of such approval.
(k) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that materially affects or could reasonably be expected to materially affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole Company that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
(n) The Company acknowledges, understands and agrees that the Shares may be sold in Israel only by the Underwriters and only to (i) such Israeli investors listed in the First Addendum to the Israeli Securities Law (the “Addendum”) who submit written confirmation to the Underwriters and the Company that such investor (A) falls within the scope of the Addendum, is aware of the meaning of same and agrees to it, and (B) is acquiring the Shares for investment for its own account or, if applicable, for investment for clients who are investors listed in the Addendum and in any event not as a nominee, market maker or agent and not with a view to, or for the resale in connection with, any distribution thereof (“Israeli Accredited Investors”).
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives, and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a6(a)(i) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.Representatives.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates certificate delivered pursuant to Section 3(d5(d) hereof shall be true and correct in all material respects when made and on and as of each Closing Date as if made on such date. The , and the Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions in all material respects contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: that (i) the representationssigners of such certificate have examined the Registration Statement, the Prospectus and this Agreement and that the representations and warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct in all respects on and as of such Closing Date; (ii) Date with the same effect as if made on such Closing Date and the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.conditions
Appears in 1 contract
Samples: Underwriting Agreement (Guilford Pharmaceuticals Inc)
Conditions of the Underwriters’ Obligations. The obligations obligation of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of either of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or or, to the knowledge of the Company, threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeUnderwriter. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each the Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each the Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained hereinherein required to be performed or satisfied by the Company; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each the Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on the favorable opinionClosing Date from Ropes & Xxxx LLP, counsel for the Company, an opinion letter and a negative assurance letter, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for previously agreed with the UnderwritersRepresentative.
(g) On each Closing Date, the The Representative shall have received on the favorable tax opinionClosing Date from Xxxxxxx Procter LLP, counsel for the Underwriters, an opinion and negative assurance statement, addressed to the Representative and dated as of such Closing Date, with respect to the validity of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLCthe Shares, the Registration Statement, the General Disclosure Package, the Prospectus and other related matters as tax the Representative reasonably may request, and such counsel for the Company, in form shall have received such papers and substance reasonably satisfactory information as they request to counsel for the Underwritersenable them to pass upon such matters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counselcounsel for the Underwriters.
(i) The Representative shall have received copies of the Lock-up Up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Nasdaq Global Market, subject only to official notice of issuance.
(k) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the General Disclosure Package and the Prospectus, (i) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus: (i) , there shall not have been any material change in the capital stock of the Company (other than as a result or the exercise of outstanding stock options) or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could would reasonably be expected to have a Material Adverse Effect, (iv) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole Material Adverse Effect that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA the Company shall have confirmed that it has not raised any objection with respect furnished to the fairness Representative a Secretary’s Certificate attaching true and reasonableness complete copies of the underwriting terms resolutions adopted by the Board of Directors of the Company or the Pricing Committee of the Board of Directors of the Company relating to the issuance, offering and agreements in connection with sale of the OfferingShares, the Certificate of Incorporation of the Company and the By-Laws of the Company; and certifying the due appointment of any of the Company’s officers to execute this Agreement and other documents or certificates to be delivered to the Representative.
(m) On the Closing Date, the Company shall have furnished to the Representative a certificate of the Principal Financial Officer the Company, in form and substance previously agreed with the Representative.
(n) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents customarily furnished in similar offering transactions as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become became effective on the Effective Date shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwiseProspectus) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus Prospectuses and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus and, as of the applicable date of the Prospectus, did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the ProspectusProspectus that has not been so disclosed; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor KPMG LLP addressed to the Representative Representatives and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, 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 Statement, the General Disclosure Package and the Disclosure PackageProspectus, and (ii) on each Closing Date, a signed letter from the Auditor KPMG LLP addressed to the Representative Representatives and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives 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 and the Prospectus.
(f) On each Closing Date, the Representative The Representatives shall have received the favorable opinionon each Closing Date from Xxxxxxx Coie LLP, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to for the Company, an opinion, addressed to the Representatives and dated such Closing Date (with appropriate modifications for any opinion delivered on any subsequent Closing Date), in the form and substance reasonably satisfactory to counsel for the Underwritersset forth in Exhibit B hereto.
(g) On each Closing Date, the Representative The Representatives shall have received the favorable tax opinionon each Closing Date from Xxxxxxxxx Xxxxxxxx Xxxxxxxx & Xxxxx, dated as of such Closing DateP.A., of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax special intellectual property counsel for the Company, an opinion, addressed to the Representatives and dated such Closing Date, in the form and substance reasonably satisfactory to counsel for the Underwritersset forth in Exhibit C hereto.
(h) The Representatives shall have received on each Closing Date from Xxxx Xxxxx, Esq, Vice President Legal and Secretary of the Company, an opinion, addressed to the Representatives and dated such Closing Date, in the for set forth in Exhibit D hereto.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives, and their counselcounsel and the Underwriters shall have received from Xxxxxx & Xxxxxxx LLP, a favorable opinion (including a customary written negative assurance statement), addressed to the Representatives and dated such Closing Date, covering such matters as are customarily covered in transactions of this type, and the Company shall have furnished to Xxxxxx & Xxxxxxx LLP such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(ij) The Representative Representatives shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jk) The Shares shall have been approved for listing on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance.
(kl) Subsequent The Company shall have furnished or caused to be furnished to the execution and delivery of this Agreement or, if earlier, Representatives such further certificates or documents as the Representatives shall have reasonably requested.
(m) The Representatives shall be reasonably satisfied that since the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could would reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could would reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material adverse change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries the Subsidiary considered as a whole that makes it impractical or inadvisable in the RepresentativeRepresentatives’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(ln) On the Firm Shares Closing Date, FINRA The Representatives shall have confirmed that it has not raised any objection with respect received clearance from the NASD as to the fairness and reasonableness amount of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished compensation allowable or caused to be furnished payable to the Representative such further customary certificates or documents as the Representative shall have reasonably requestedUnderwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Poniard Pharmaceuticals, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed performed, in all material respects respects, all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; and (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeMaterial Adverse Effect.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Lxxxxxxxxx Xxxxxxx LLP, counsel for the favorable opinionCompany, an opinion and negative assurance statement, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the The Representative shall have received the favorable tax opinionon each Closing Date from Mintz, dated as of such Closing DateLevin, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLCCohn, as tax Ferris, Glovsky and Popeo, P.C., intellectual property counsel for the Company, an opinion and negative assurance statement, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) The Representative shall have received on the Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Representative, a negative assurance statement, addressed to the Representative and dated as of such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of such documents as they request for enabling them to pass upon such matters.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto. In the event that Aegis Capital Corp., in its sole discretion, agrees to release or waive any restriction set forth in a Lock-Up Agreement for an officer or director of the Company, and provides the Company with notice of the impending release or waiver at least three (3) Business Days before the effective date of such release or waiver (which release or waiver shall be substantially in the Form found at Exhibit A-1 attached hereto), the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit A-2 attached hereto through a major news service at least two (2) Business Days before the effective date of the release or waiver.
(jk) The Shares shall have been approved for listing quotation on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance., and the Company has taken no action designed to, or likely to have the effect of, delisting the Shares, nor has the Company received any notification that the Nasdaq Capital Market is contemplating terminating such listing.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
(o) A Representative’s Warrant Agreement, substantially in the form of Exhibit B hereto, executed by an officer of the Company, delivered to the Representative on the Firm Shares Closing Date.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeMaterial Adverse Effect.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Lucosky Bxxxxxxx LLP, counsel for the favorable opinionCompany, an opinion and negative assurance statement, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the The Representative shall have received on each Closing Date from [_____], intellectual property counsel for the favorable tax opinionCompany, an opinion and written negative assurances statement, addressed to the Representative and dated such Closing Date, in form and substance satisfactory to the Representative.
(h) The Representative shall have received on the Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Representative, a negative assurance statement, addressed to the Representative and dated as of such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, such documents as tax counsel they request for the Company, in form and substance reasonably satisfactory enabling them to counsel for the Underwriterspass upon such matters.
(hi) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto. In the event that Oxxxxxxxxxx & Co. Inc., in its sole discretion, agrees to release or waive any restriction set forth in a Lock-Up Agreement for an officer or director of the Company, and provides the Company with notice of the impending release or waiver at least three (3) Business Days before the effective date of such release or waiver (which release or waiver shall be substantially in the Form found at Exhibit A-1 attached hereto), the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit A-2 attached hereto through a major news service at least two (2) Business Days before the effective date of the release or waiver.
(jk) The Shares shall have been approved for listing and quotation on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance, and the Company has taken no action designed to, or likely to have the effect of, delisting the Shares, nor has the Company received any notification that the Nasdaq Capital Market is contemplating terminating such listing.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430A. If the Company has elected to rely upon Rule 434, a term sheet shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, Statement and the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with , at the execution of time this Agreement is executed and on each Closing Date a signed letter from the Auditor Xxxxxxxxx Almagor & Co., a member of Deloitte Touche Tohmatsu addressed to the Representative Representatives and dated dated, respectively, the date of this AgreementAgreement and each such Closing Date, in form and substance reasonably satisfactory to the Representative, Representatives 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the Representative The Representatives shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On on each Closing DateDate from Xxxxx Xxxxx & Co., the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance an opinion, addressed to the Representative Representatives and their counsel.dated such Closing Date, and stating in effect that:
(i) The Representative shall have received copies Company has been duly organized and is validly existing as a company under the laws of the Lock-up Agreements executed State of Israel. No proceeding has been instituted by each entity or person listed on Schedule IV heretothe Registrar of Companies in Israel for the dissolution of the Company.
(jii) The Shares shall have been approved for listing on Company has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business in Israel as now being conducted and as described in the NASDAQ Capital Market, subject only Registration Statement and the Prospectus and to official notice of issuanceenter into and perform its obligations under this Agreement and to issue and sell the Shares.
(kiii) Subsequent to The authorized, issued and outstanding capital stock of the execution and delivery of this Agreement or, if earlier, the dates Company is as of which information is given set forth in the Registration StatementStatement and the Prospectus under the caption "Capitalization" as of the dates stated therein and, the General Disclosure Package or the Prospectus: (i) since such dates, there shall not have has been any material no change in the capital stock of the Company except for subsequent issuances, if any, pursuant to this Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Prospectus; all of the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and nonassessable and none of them was issued in violation of any preemptive or other similar right which have not been waived. The Shares to be issued and sold by the Company pursuant to this Agreement have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued, fully paid and nonassessable, and no holder of the Shares is or will be subject to personal liability by reason of being such a holder. The issuance and sale of the Shares by the Company is not subject to any preemptive or other similar rights of any securityholder of the Company, which have not been waived. To the best of such counsel's knowledge, except as disclosed in the Registration Statement and the Prospectus, there are no preemptive or other rights to subscribe for or to purchase or any material change restriction upon the voting or transfer of any securities of the Company pursuant to the Company's Memorandum of Association, Articles of Association or By-laws or other governing documents or any agreements or other instruments to which the Company is a party or by which it is bound. To the best of such counsel's knowledge, except as disclosed in the indebtedness (Registration Statement and the Prospectus, there is no outstanding option, warrant or other than right calling for the issuance of, and no commitment, plan or arrangement to issue, any share of stock of the Company or any security convertible into, exercisable for, or exchangeable for stock of the Company. The Ordinary Shares and the Shares conform in all material respects to the descriptions thereof contained in the ordinary course Registration Statement and the Prospectus. The form of business) certificate used to evidence the Ordinary Shares complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Transaction EntitiesMemorandum of Association, Articles of Association or By-laws of the Company. To the best of such counsel's knowledge, there are no persons with registration rights or other similar rights to have any securities registered pursuant to the Registration Statement or otherwise registered by the Company under the Securities Act that have not been waived.
(iv) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly authorized, executed and delivered by the Company, and to the extent governed by Israeli law, this Agreement constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms except (a) as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles and (b) to the extent rights to indemnification and contribution thereunder may be limited by United States Federal and state securities laws or public policy relating thereto.
(v) The Seventh Amendment to the Facility Agreement between the Company and Bank Leumi Le-Israel and Bank Hapoalim B.M., dated November 11, 2003 and Amendment No. 3 to Payment Schedule of Series A-5 Additional Purchase Obligations, Waiver of Series A-5 Conditions, Conversion of Series A-4 Wafer Credits and Other Provisions between the Company and Israel Corporation Technologies (ICTech) Ltd., SanDisk Corporation, Alliance Semiconductor Corporation, Macronix International Co., Ltd. and The Israel Corporation Ltd. have been duly and validly authorized, executed and delivered, and constitute the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles.
(vi) Neither the execution, delivery and performance of this Agreement by the Company nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares will (i) give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or any event which with notice or lapse of time, or both, would constitute a default) under, or require consent or waiver under, or result in the execution or imposition of any lien, charge, claim, security interest or encumbrance upon any properties or assets of the Company pursuant to the terms of, any indenture, mortgage, deed trust, note or other agreement or instrument of which such counsel is aware and to which the Company is a party or by which either the Company or any of its assets or properties or businesses is bound, or any franchise, license, permit, judgment, decree, order, Israeli statute, rule or regulation, domestic or foreign, of which such counsel is aware or (ii) violate any provision of the memorandum or articles of association, charter or by-laws of the Company, except in the case of (i) as set forth would not have a Material Adverse Effect.
(vii) Subject to the Underwriters' compliance with Section 1 to this Agreement, no consent, approval, authorization, license, registration, qualification or contemplated order of any Israeli court or governmental agency or regulatory body is required for the due authorization, execution, delivery or performance of this Agreement by the Registration StatementCompany or the consummation of the transactions contemplated hereby or thereby. Under exchange control regulations currently in effect there are no authorizations or consents required from any governmental or regulatory body in Israel to give nonresidents of Israel the rights to freely repatriate to non-Israel currency all amounts received with respect to Ordinary Shares that were purchased with non-Israel currency, whether as a dividend, as a liquidating distribution or as proceeds from the sale of such shares, subject to applicable tax withholding.
(viii) To the best of such counsel's knowledge, there is no action, suit, proceeding or other investigation, before any Israeli court or before or by any Israeli public body or board pending or threatened against, or involving the assets, properties, Permits or businesses of, the General Disclosure Package Company which is not disclosed in the Registration Statement or the Prospectus, no material oral Prospectus or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or which could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lix) On The statements in the Firm Shares Closing DateProspectus under the captions "Risk Factors," "Management's Discussion and Analysis of Financial Condition and Results of Operations," "Business - Environmental Matters," "Business-Legal Proceedings," "Management," "Certain Transactions," "Description of Capital Stock," "Taxation and Government Programs," "Material Agreements," and in the Registration Statement under Item 8 of Part II, FINRA shall have confirmed that it has not raised any objection insofar as such statements constitute a summary of documents referred to therein or matters of Israeli law, are accurate in all material respects and accurately present the information with respect to such documents and matters. All contracts and other documents filed as exhibits or described in the fairness and reasonableness of Registration Statement are fairly described in the underwriting terms and agreements in connection with the OfferingRegistration Statement.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement Agreement, and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleRule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus "free writing prospectus," as defined in Rule 405 of the Rules, shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company and the Selling Stockholders contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company and the Selling Stockholders shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement Agreement, and shall have performed all agreements contained in the Custody Agreement, required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, Package and any individual Issuer Free Writing Prospectus and, in their opinion (A) (x) as of the Effective Date Date, the Registration Statement Statement, the Statutory Prospectus and the Prospectus did not include, and (y) as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) Package and any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act.
(e) The Representatives shall have received on each Closing Date a certificate addressed to the Representatives and dated such Closing Date, of each Selling Stockholder, to the effect that: (i) the representations, warranties and agreements of each Selling Stockholder in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) each Selling Stockholder has performed all covenants and agreements and satisfied all conditions contained herein; and (viii) there each Selling Stockholder has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in carefully examined the Registration Statement, the Prospectus, the General Disclosure Package and any individual Issuer Free Writing Prospectus, and, in the opinion of such Selling Stockholder, (A) with respect to the information relating to such Selling Stockholder, (x) as of the Effective Date, the Registration Statement, the Statutory Prospectus and the Prospectus, and (y) as of the Transaction Entities Applicable Time, the General Disclosure Package and their Subsidiaries any individual Issuer Free Writing Prospectus, when considered as together with the General Disclosure Package, did not include any untrue statement of a wholematerial fact and did not omit to state a material fact required to be stated therein or necessary 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 with respect to such Selling Stockholder which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement or the Prospectus.
(ef) The Representative Representatives shall have received: , (i) simultaneously with the execution of this Agreement and (ii) on each Closing Date, a signed letter from the Auditor KPMG LLP addressed to the Representative Representatives and dated dated, respectively, the date of this AgreementAgreement and each such Closing Date, in form and substance reasonably satisfactory to the Representative, Representatives 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 and Statement, the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 Statutory Prospectus and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriterscase may be.
(g) On each Closing Date, the Representative The Representatives shall have received the favorable tax opinionon each Closing Date from Paul, dated as of such Closing DateHastings, of Kxxxxx Voekler Cxxxxxxxxx Janofsky & Fxxxx PLCWalker LLP, as tax counsel for the Company, an opinion, addrxxxxx xx thx Xxxxesentatives and dated such Closing Date stating the opinions set forth in form and substance reasonably satisfactory to counsel for the UnderwritersExhibit D attached hereto.
(h) All proceedings taken in connection with the sale of The Representatives shall have received on the Firm Shares and Closing Date from Paul, Hastings, Janofsky & Walker LLP, counsel for the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance Selling Stockholders, an xxxxxxx, adxxxxxxd to the Representative Representatives and their counseldated such Closing Date, and stating the opinions set forth in Exhibit E attached hereto.
(i) The Representative Representatives shall have received on each Closing Date from DLA Piper Rudnick Gray Cary US LLP, counsel for the Representatives, xx xxxxxxx, axxxxxxxx to the Representatives and dated such Closing Date, and stating the opinions set forth in Exhibit F hereto. With respect to the opinions referred to in Section 4(g), Section 4(h) and Section 4(i), to the extent deemed advisable by such counsel, such counsel may rely as to matters of fact on certificates of responsible officers of the Company and public officials and on the opinions of other counsel satisfactory to the Representatives as to matters which are governed by laws other than the laws of the State of New York, the General Corporation Law of the State of Delaware and the federal laws of the United States; provided that such counsel shall state that in their opinion the Underwriters and they are justified in relying on such other opinions. Copies of such certificates and other opinions shall be furnished to the Representatives.
(j) The Representatives shall have received copies of the Lock-up Up Agreements executed by each entity or person listed on Schedule IV hereto.
(jk) The Shares On or prior to the date of this Agreement, each Selling Stockholder shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed deposited with the purchase or offering Custodian under the relevant Custody Agreement certificates and/or Stock Options representing the maximum aggregate number of the Shares which may be sold by such Selling Stockholder as contemplated herebyindicated on Schedule II hereto.
(l) On the Firm Shares or prior to any Closing Date, FINRA the Attorney shall have confirmed that it has not raised exercised, on the corresponding Selling Stockholder's behalf and in full compliance with the requirements of the Plans, the requisite number of Stock Options required to allow such Selling Stockholder to meet its obligations hereunder; upon the exercise of any objection with respect Stock Options, the Company shall have, on or prior to the fairness Closing Date in question, issued, and reasonableness of the underwriting terms and agreements in connection with Custodian shall have issued certificates representing, the OfferingShares underlying such Stock Options.
(m) The Company and each Selling Stockholder shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares to be delivered on a Closing Date are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the reasonable satisfaction of the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430A. If the Company has elected to rely upon Rule 434, a term sheet shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period.
(c) The Representative shall be satisfied that (i) the representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each such Closing Date as if made on such date; (ii) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Prospectus that has not been set forth in an effective supplement or amendment as required by the Securities Act or the Rules and (iii) since the respective dates as of which information is given in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein, there has not been any material adverse change in the business, properties, financial condition or results of operations of the Company. The Company shall have performed in all material respects all covenants and agreements agreements, and satisfied all the conditions other conditions, contained in this Agreement and required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained hereinherein on or prior to such Closing Date; (iii) they have carefully examined the Registration Statement, Statement and the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, include any untrue statement of a material fact and did not 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 which as required by the Securities Act or the Rules should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the ProspectusProspectus and was not so set forth; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: received a certificate on each Closing Date signed by the Secretary of the Company to the effect that, as of such Closing Date the Secretary certifies as to (ii)(A) simultaneously the accuracy and completeness of the Company’s charter and bylaws, (B) the resolutions of the Board of Directors and any committee thereof relating to the offering contemplated hereby and the execution and delivery of this Agreement, (C) the form of stock certificate representing the Shares, and (D) copies of all communications with the execution Commission; (ii) the incumbency and signature of persons signing this Agreement, the Registration Statement and other related documents; (iii) the approval of the Shares for listing on the Nasdaq National Market, subject only to official notice of issuance; and (iv) such other matters as Underwriters’ counsel may reasonably request.
(f) The Representative shall have been furnished evidence in the usual written or electronic form from the appropriate authorities of the several jurisdictions, or other evidence satisfactory to the Representative, of the good standing and qualifications of the Company.
(g) The Representative shall have received, at the time this Agreement is executed and on each Closing Date a signed letter from the Auditor PricewaterhouseCoopers LLP addressed to the Representative and dated dated, respectively, the date of this Agreement, in form Agreement and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each such Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(fh) On each Closing Date, the The Representative shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On on each Closing DateDate from Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, (i) an opinion, addressed to the Representative and dated such Closing Date, in the form attached hereto as Schedule IV, and substance reasonably satisfactory (ii) an opinion, addressed to the Representative and dated such Closing Date, with respect to intellectual property matters.
(i) The legality and sufficiency of the sale of the Shares hereunder and the validity and form of the certificates representing the Shares, all corporate proceedings and other legal matters incident to the foregoing, and the form of the Registration Statement and of the Prospectus (except as to the financial statements and financial information contained therein) shall have been approved at or prior to the Closing Date by Xxxxxx, Xxxxx & Bockius LLP, counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated . The Representative shall be reasonably satisfactory in form and substance have received on each Closing Date from Xxxxxx, Xxxxx & Xxxxxxx LLP an opinion, addressed to the Representative and their counseldated such Closing Date, with respect to the issuance and sale of the Shares, the Registration Statement and the Prospectus and such other related matters as the Underwriters reasonably may request and such counsel shall have received such documents and other information as they request to enable them to pass upon such matters.
(ij) The Representative shall have received copies of the Locklock-up Agreements agreements executed by each entity or person listed on Schedule IV heretothe directors, executive officers and holders of the Company’s outstanding capital stock, as contemplated by Section 2(n) of this Agreement.
(jk) The Shares shall have been approved for listing quotation on the NASDAQ Capital Nasdaq National Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Samples: Underwriting Agreement (Voyager Pharmaceutical Corp)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules) shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement shall be true and correct, and the representations and warranties of the Company contained in the certificates delivered pursuant to Section 3(d) shall be true and correct in all material respects, when made and on and as of each Closing Date as if made on such datedate (provided, that each representation and warranty that contains a materiality qualifier shall be true and correct in all respects as of such Closing Date). The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative Underwriters and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct in all material respects as of such Closing Date (provided, that each representation and warranty that contains a materiality qualifier shall be true and correct in all respects as of such Closing Date); (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) (1) as of the Effective Date Date, the Registration Statement and did not or will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, (2) as of the date thereof or as of the date hereof, the Prospectus did not includecontain and does not contain 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, and (3) as of the Applicable Time, neither (ix) the General Disclosure Package, nor (iiy) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and did not omit or 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 (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred since the date of this Agreement any material adverse change in the assets, liabilities, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Underwriters and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Cozen X’Xxxxxx P.C., counsel for the favorable opinionCompany, an opinion and negative assurance letter, addressed to the Underwriters and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLCsubstantially in the form attached hereto as Exhibit B (which shall be subject to customary assumptions, as counsel to the Companyexceptions, in form limitations and substance reasonably satisfactory to counsel for the Underwritersqualifications).
(g) On each Closing Date, the The Representative shall have received on each Closing Date from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel for the favorable tax Underwriters, an opinion, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLCwith respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel such documents as tax counsel they request for the Company, in form and substance reasonably satisfactory enabling them to counsel for the Underwriterspass upon such matters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV V hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance.
(k) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any subsidiary or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany or any of its subsidiaries, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company or its subsidiaries that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company or any subsidiary shall have been sustained that had or could reasonably be expected to have a Material Adverse Effectbe material to the Company or any subsidiary, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company, any of its subsidiaries or any of their respective properties that is material to the Transaction Entities Company or any of its subsidiaries or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, liabilities, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On The Representative shall have received (i) simultaneously with the Firm Shares execution of this Agreement a certificate, addressed to the Underwriters and dated the date of this Agreement, of the chief executive officer of the Company addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative, with respect to certain information contained in the Registration Statement and the General Disclosure Package and (ii) on each Closing Date, FINRA shall have confirmed that it has not raised any objection a certificate of the chief executive officer of the Company addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative, with respect to certain information contained in the fairness Registration Statement and reasonableness of the underwriting terms and agreements in connection with the OfferingProspectus.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement, and the obligation of the Underwriters to purchase the Firm Shares or Option Shares, as the case may be, may be terminated by the Representative by notice to the Company at any time at or prior to the Closing Date, and, except for an intentional or willful breach of this Agreement, such termination shall be without liability of any party to any other party, except as provided in Section 4(b); provided, however, that Sections 4(b), 5, 6, 7 and 9 shall survive any such termination and remain in full force and effect.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations obligation of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters Underwriter to purchase the Shares are Securities is subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Underwriter and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeUnderwriter. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Underwriter of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the any certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each the Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such the Closing Date.
(d) The Representative Underwriter shall have received on each the Closing Date a certificate, addressed to the Representative Underwriter and dated such the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such the Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, Prospectus and the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative Underwriter shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Underwriter and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeUnderwriter, 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 and the General Disclosure Package, and (ii) on each the Closing Date, a signed letter from the Auditor addressed to the Representative Underwriter and dated the date of such Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative Underwriter 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 and the Prospectus.
(f) On each Closing Date, the Representative The Underwriter shall have received on the favorable opinionClosing Date from Fox Rothschild LLP, corporate counsel for the Company, an opinion and negative assurance statement, addressed to the Underwriter and dated as of such the Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersUnderwriter.
(g) On each Closing Date, the Representative The Underwriter shall have received on the favorable tax opinionClosing Date from Xxxxxxx Procter LLP, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax intellectual property counsel for the Company, an opinion, addressed to the Underwriter and dated the Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersUnderwriter.
(h) The Underwriter shall have received on the Closing Date from Xxxxxxxxxx Xxxxxxx LLP, counsel for the Underwriter, a negative assurance statement, addressed to the Underwriter and dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Underwriter, and their counselcounsel to the Underwriter.
(ij) The Representative Underwriter shall have received copies of the Lock-up Agreements executed by each entity or person director and executive officer of the Company listed on Schedule IV I hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent The Underwriter shall have received on the Closing Date copies of the executed Pre-Funded Warrants in portable document (“PDF”) format.
(l) The Underwriter shall have received on the Closing Date PDF copies of the executed Common Warrants being sold on the Closing Date.
(m) The Company shall have submitted a Notification Form: Listing of Additional Shares with The Nasdaq Capital Market with respect to the execution Shares, Pre-Funded Warrant Shares and delivery of this Agreement or, if earlier, Warrant Shares.
(n) The Underwriter shall be reasonably satisfied that since the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ Underwriter’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(lo) On or prior to the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Securities.
(mp) The Company shall have furnished or caused to be furnished to the Representative Underwriter such further customary certificates or documents as the Representative Underwriter shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it the Company at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of each of the Company and the Parent to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from each of the Auditor Auditors addressed to the Representative Representatives and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, 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 and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from each of the Auditor Auditors addressed to the Representative Representatives and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives 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 and the Prospectus.
(f) On each Closing Date, the Representative The Representatives shall have received on each Closing Date from Shibolet & Co., Israeli counsel for the favorable Company, an opinion, addressed to the Representatives and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.Representatives, substantially in the form attached hereto as Exhibit B.
(g) On each Closing Date, the Representative The Representatives shall have received the favorable tax opinionon each Closing Date from Xxxxxx Xxxxxxx & Xxxxxxx LLP, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax U.S. counsel for the Company, an opinion, addressed to the Representatives and dated such Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C.
(h) The Representatives shall have received on each Closing Date from Xxxxx Xxxxxx, Adv. general counsel for the Company, an opinion, addressed to the Representatives and dated such Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit D.
(i) The Representatives shall have received on each Closing Date from Xxxxxx, Xxx & Xxxxxx, Israeli counsel for the Underwriters, an opinion, addressed to the Representatives and dated such Closing Date, in form and substance satisfactory to the Representatives.
(hj) The Representatives shall have received on each Closing Date from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, U.S. counsel for the Underwriters, an opinion, addressed to the Representatives and dated such Closing Date, in form and substance satisfactory to the Representatives.
(k) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives, and their counsel.
(il) The Representative Representatives shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jm) The Shares shall have been approved for listing on the The NASDAQ Capital Global Market, subject only to official notice of issuance.
(kn) Subsequent to The Representatives shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the share capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the RepresentativeRepresentatives’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(mo) The Company shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
Appears in 1 contract
Samples: Underwriting Agreement (012 SMILE.COMMUNICATIONS LTD)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the The Prospectus shall have been timely filed with the Commission in accordance with Section 4(a6(A)(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.Representatives.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d5(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The date and the Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) that the representationssigners of such certificate have carefully examined the Registration Statement, the Prospectus and this Agreement and that the representations and warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct on and as of such Closing Date; (ii) Date with the same effect as if made on such Closing Date and the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact this Agreement required to be stated therein performed or necessary satisfied by it at or prior 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholesuch Closing Date.
(e) The Representative Representatives shall have received: (i) simultaneously with received on the execution of Effective Date, at the time this Agreement is executed and on each Closing Date a signed letter from the Auditor Coopers & Xxxxxxx LLP addressed to the Representative Representatives and dated dated, respectively, the Effective Date, the date of this AgreementAgreement and each such Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives.
(f) The Representatives shall have received on each Closing Date from Xxxxx Xxxxxxxxxx, containing statements counsel for the Company, an opinion, addressed to the Representatives and information dated such Closing Date, and stating in effect that:
(i) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the type ordinarily included State of Delaware. The Company is duly qualified and in accountants’ “comfort letters” good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its businesses makes such qualification necessary, except for such jurisdictions where the failure to underwriters with respect so qualify would not have a material adverse effect on the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company.
(ii) The Company has all requisite corporate power and authority to the financial statements own, lease and certain financial information contained license its assets and properties and conduct its business as now being conducted and as described in the Registration Statement and the Disclosure PackageProspectus; and the Company has all requisite corporate power and authority and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and sell the Shares other than those required under state and foreign Blue Sky laws.
(iii) The authorized and issued capital stock of the Company is as set forth in the Registration Statement and the Prospectus; the certificates evidencing the Shares are in due and proper legal form and have been duly authorized for issuance by the Company; all of the outstanding shares of Common Stock of the Company have been duly and validly authorized and have been duly and validly issued and are fully paid and nonassessable and none of them was issued in violation of any preemptive or other similar right. The Shares when issued and sold pursuant to this Agreement will be duly and validly issued, outstanding, fully paid and nonassessable and none of them will have been issued in violation of any preemptive or other similar right. To the best of such counsel's knowledge, except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and (ii) on each Closing Dateno commitment, a signed letter from plan or arrangement to issue, any share of stock of the Auditor addressed Company or any security convertible into, exercisable for, or exchangeable for stock of the Company. The Common Stock and the Shares conform in all material respects to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 descriptions thereof contained in the Registration Statement and the Prospectus.
(fiv) On each Closing Date, To the Representative shall have received the favorable opinion, dated as best of such Closing Datecounsel's knowledge, no holder of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale any security of the Firm Shares and Company has the Option Shares as herein contemplated shall be reasonably satisfactory right to have any security owned by such holder included in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement Registration Statement or, if earlier, the dates except as of which information is given described in the Registration Statement, to demand registration of any security during the General Disclosure Package period ending 180 days after the Effective Date.
(v) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly authorized, executed and delivered by the Company.
(vi) Neither the execution, delivery and performance of this Agreement by the Company nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the Prospectus: (i) there shall not have been due date of any material change payment due under, or conflict with or result in the capital stock breach of any term or provision of, or constitute a default (or any event which with notice or lapse of time, or both, would constitute a default) under, or require consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company pursuant to the terms of any indenture, mortgage, deed of trust, note or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into instrument known to such counsel and to which the Company is a party or by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities which it or any of their its properties that or businesses is material bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation known to such counsel or violate any provision of the Transaction Entities charter or that affects by-laws of the Company.
(vii) No consent, approval, authorization or could reasonably be expected to affect order of any court or governmental agency or body is required for the performance of this Agreement by the Company or the consummation of the transactions contemplated by this Agreement shall hereby, including without limitation the sale of the Shares, except such as have been instituted obtained under the Securities Act and such as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the several Underwriters.
(viii) To the best of such counsel's knowledge, there is no litigation or governmental or other proceeding or investigation, before any court or before or by any public body or board pending or threatened and (v) there shall not have been any material change in against, or involving the assets, properties or businesses of, the Company which, if determined adversely to the Company, would have a material adverse effect upon the assets or properties, business, results of operations, prospects or condition (financial or otherwise), or in the results of operations, business affairs or business prospects ) of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated herebyCompany.
(lix) On The statements in the Firm Prospectus under the captions "Risk Factors - Availability of Materials"; "Risk Factors - Dependence on Third Parties"; "Risk Factors - Control by Existing Stockholders; Anti- Takeover Provisions"; "Risk Factors - Future Sales of Common Stock; Registration Rights; Possible Adverse Effect on Future Market Price"; "Business - Licenses"; "Business - Research and Development Collaborations"; "Business - Government Grants"; "Certain Transactions"; "Description of Capital Stock"; and "Shares Closing DateEligible for Future Sale", FINRA shall have confirmed that it has not raised any objection insofar as such statements constitute a summary of documents referred to therein or matters of law, are fair summaries in all material respects and accurately present in all material respects the information called for with respect to such documents and matters. All contracts and other documents required to be filed as exhibits to, or described in, the fairness and reasonableness of the underwriting terms and agreements in connection Registration Statement have been so filed with the Offering.
(m) The Company shall have furnished Commission or caused to be furnished to are fairly described in the Representative such further customary certificates or documents Registration Statement, as the Representative shall have reasonably requestedcase may be.
Appears in 1 contract
Samples: Underwriting Agreement (Progenics Pharmaceuticals Inc)
Conditions of the Underwriters’ Obligations. The obligations obligation of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters Underwriter to purchase the Shares are and the Warrants is subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the The Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules) shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeUnderwriter. If the Company has elected to rely upon Rule 430A430B, Rule 430A 430B information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Underwriter of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates certificate delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each the Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such the Closing Date.
(d) The Representative Underwriter shall have received on each the Closing Date a certificate, addressed to the Representative Underwriter and dated such the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such the Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, Package and any individual Issuer Free Writing Prospectus andProspectus, and in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative Underwriter shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Underwriter and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeUnderwriter, 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 and the Disclosure Package, and (ii) on each the Closing Date, a signed letter from the Auditor addressed to the Representative Underwriter and dated the date of such the Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative Underwriter 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 and the Prospectus.
(f) On each Closing Date, the Representative The Underwriter shall have received on the favorable opinionClosing Date from Disclosure Law Group LLP, counsel for the Company, an opinion and negative assurance statement, addressed to the Underwriter and dated as of such the Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersUnderwriter.
(g) On each Closing Date, the Representative The Underwriter shall have received on the favorable tax opinionClosing Date from Rexx Xxxxx, dated as of such Closing DateEsq., of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax intellectual property counsel for the Company, an opinion and negative assurance statement, addressed to the Underwriter and dated the Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersUnderwriter.
(h) The Underwriter shall have received on the Closing Date from Loxxxxxxxx Xxxxxxx XLP, counsel for the Underwriter, an opinion and negative assurance statement, addressed to the Underwriter and dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares Warrants as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Underwriter and their its counsel.
(ij) The Representative On or prior to the execution and delivery of this Agreement, the Underwriter shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent The Company shall have submitted a Notification Form: Listing of Additional Shares Application with the Nasdaq Capital Market with respect to the execution Shares and delivery Warrant Shares and the Nasdaq Capital Market shall have raised no objection with respect to the listing of this Agreement or, if earlier, the Shares and the Warrant Shares which has not been resolved to the reasonable satisfaction of the Underwriter on or before the Closing Date.
(l) The Underwriter shall be reasonably satisfied that since the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ Underwriter’s judgment to proceed with the purchase or offering of the Shares and the Warrants as contemplated hereby.
(lm) On or before the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares and the Warrants.
(mn) The Company shall have furnished or caused to be furnished to the Representative Underwriter such further customary certificates or documents as the Representative Underwriter shall have reasonably requested.
Appears in 1 contract
Samples: Underwriting Agreement (VistaGen Therapeutics, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Firm Securities are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus free writing prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(cb) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d3(c) shall be true and correct when made and on and as of each Closing Date or Option Closing Date, as applicable, as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date or Option Closing Date, as applicable.
(dc) The Representative shall have received on each Closing Date and each Option Closing Date a certificate, addressed to the Representative and dated as of such Closing Datedate, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, representations and warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct in all material respects (except for such representations and warranties qualified by materiality, which representations and warranties shall be true and correct in all respects) as of such Closing Date or Option Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have each of them has carefully examined the Registration Statement, the Time of Sale Prospectus, the General Disclosure PackageProspectus and each free writing prospectus, and any individual Issuer Free Writing Prospectus if any, and, in each of their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure PackageTime of Sale Prospectus, nor (ii) any individual Issuer Free Writing Prospectusfree writing prospectus, when considered together with the General Disclosure PackageRegistration Statement and the Prospectus, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been but was not set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Time of Sale Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(ed) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 Statement, the Time of Sale Prospectus, and the Disclosure Packageeach free writing prospectus, if any, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “bring-down comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement Statement, the Time of Sale Prospectus, and the Prospectuseach free writing prospectus, if any.
(fe) On each Closing Date, the The Representative shall have received on each Closing Date and each Option Closing Date from each of XxXxxxxxx Will & Xxxxx LLP and Meitar Liquornik Xxxx Xxxxxx Tal Law Offices, counsel for the favorable opinionCompany, an opinion and negative assurance statement, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Companydate, in form and substance reasonably satisfactory to the Representative. In rendering such opinion, counsel for may rely, to the Underwritersextent they deem such reliance proper, as to matters of fact upon certificates of officers of the Company and of government officials, provided that counsel shall state their belief that they and you are justified in relying thereon.
(gf) On each Closing Date, the The Representative shall have received on each Closing Date and each Option Closing Date from Xxxxxxxx Xxxx & Partners shall have furnished to the favorable tax opinionUnderwriters such counsel’s written opinion and negative assurance statement, as intellectual property counsel to the Company, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Companydate, in form and substance reasonably satisfactory to the Representative.
(g) The Representative shall have received on each Closing Date and each Option Closing Date from Xxxxxxxx Xxxx LLP, counsel for the UnderwritersRepresentative, an opinion and/or negative assurance statement, addressed to the Representative and dated as of such date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of such documents as they request for enabling them to pass upon such matters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV D hereto.
(ji) The Shares and Warrant Shares shall have been approved for listing quotation on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance.
(j) The Company shall have delivered executed copies of the Pre-Funded Warrants to the public purchasers thereof.
(k) Subsequent The Company shall have delivered executed copies of the Ordinary Warrants to the execution and delivery public purchasers thereof.
(l) The Company shall have delivered executed copies of this Agreement or, if earlier, the Option Warrants to the public purchasers thereof.
(m) The Representative shall be reasonably satisfied that since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or Time of Sale Prospectus and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package Time of Sale Prospectus or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that materially affects or could reasonably be expected to materially affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(ln) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mo) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
(p) The Company acknowledges, understands and agrees that the Securities may be offered and sold in Israel only by the Underwriters and only to (i) such Israeli investors listed in the First Addendum to the Israeli Securities Law (the “Addendum”) who submit written confirmation to the Underwriters and the Company that such investor (A) falls within the scope of the Addendum, is aware of the meaning of same and agrees to it, and (B) is acquiring the Securities for investment for its own account or, if applicable, for investment for clients who are investors listed in the Addendum and in any event not as a nominee, market maker or agent and not with a view to, or for the resale in connection with, any distribution thereof (“Israeli Accredited Investors”). If any condition specified in this Section 3 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representative by notice from the Representative to the Company at any time on or prior to the Closing Date and, with respect to the Securities, at any time on or prior to the applicable Option Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 4(b), 5 and 6(b) shall at all times be effective and shall survive such termination.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a4(a)(i) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company Company, in such capacity, to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(ef) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed bringdown letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Securities are subject to each of the following terms and conditions:
(a) Notification that the The Registration Statement has become effective shall have been received by and at the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and Closing Date no stop order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon A prospectus containing Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B Information shall have been transmitted to filed with the Commission for filing pursuant to in the manner and within the period required by Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, (without reliance on Rule 424(b)(8)) or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B. Any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(cb) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Representative shall have reasonably determined, and advised the Company, that the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto contains an untrue statement of fact which, in the Representative’s reasonable opinion, is material, or omits to state a fact which, in the Representative’s reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Issuer-Represented Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Timeeach Closing Date, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Issuer-Represented Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change Material Adverse Effect or any event that is likely to result in a Material Adverse Effect, whether or not arising from transactions in the assets, properties, condition, financial or otherwise, or in the results ordinary course of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholebusiness.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the each Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the each Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLCNorton Xxxx Xxxxxxxxx US LLP, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax intellectual property legal opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax from intellectual property legal counsel for to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) On each Closing Date, the Representative shall have received the favorable legal opinion, dated as of such Closing Date, from British Virgin Island counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(i) On each Closing Date, there shall have been furnished to the Underwriters the negative assurance letter of Xxxxxx Xxxxxxx & Xxxxx LLP, counsel to the Underwriters, dated such Closing Date, as applicable, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters.
(j) All proceedings taken in connection with the sale of the Firm Shares Securities and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(ik) The Representative shall have received copies of the Lock-up Agreements in form and substance reasonably satisfactory to counsel for the Underwriters executed by each entity or person listed on Schedule IV hereto.
(jl) The Shares Company shall have been approved for listing on taken no action designed to, or likely to have the effect of terminating the registration of the Common Stock and Warrants under the Exchange Act or delisting or suspending from trading the Common Stock and Warrants from the NASDAQ Capital Market, subject only to official notice nor has the Company received any information suggesting that the Commission or NASDAQ Capital Market is contemplating terminating such registration or listing. The Securities, the Warrants and shares of issuanceCommon Stock underlying the Warrants and Representative’s Warrants shall be DTC eligible.
(km) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany or its subsidiaries, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(ln) On the Firm Shares Securities Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(mo) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as required by this Agreement, the obligations of the Underwriters to consummate the Closing hereunder may be cancelled by the Representative after notice of such cancellation shall have be given to the Company in writing and the Company shall have been given a reasonable period of time to satisfy such condition (if such condition is capable of being satisfied).
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The obligation of the Underwriters to purchase the Separate Notes are subject to the condition that the Firm IDSs shall have been purchased from the Company and sold by the Underwriters. The respective obligations of the Underwriters to purchase the Shares Offered Securities are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, no order having the effect of ceasing or suspending the distribution of the Offered Securities shall have been issued or proceedings therefore initiated or threatened by any securities commission, securities regulatory authority or stock exchange in Canada or in the United States and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) or any securities regulatory authority in any of the Qualifying Provinces shall have been complied with to the satisfaction of the Commission or applicable securities regulatory authority and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430A. If the Company has elected to rely upon Rule 434, a term sheet shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period.
(c) The representations and warranties of the Company and the Selling Stockholders contained in this Agreement and in the certificates delivered pursuant to Section 3(dSections 4(d) and 4(e) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company and the Selling Stockholders shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company and the Guarantors in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, Statement and the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or instituted, are pending or, to the knowledge of the Company, are contemplated under the Securities Act; and (v) there has not occurred Act or by any material adverse change securities commission or securities regulatory authority in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeCanada.
(e) The Representative Representatives shall have receivedreceived on each Closing Date a certificate addressed to the Representatives and dated such Closing Date, of each Selling Stockholder, to the effect that: (i) simultaneously with the execution representations, warranties and agreements of each Selling Stockholder in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) each Selling Stockholder has performed all covenants and agreements and satisfied all conditions contained herein; and (iii) each Selling Stockholder has carefully examined the Registration Statement, the Prospectus and the Canadian Prospectus and, in the opinion of such Selling Stockholder, since the Effective Date no event has occurred with respect to such Selling Stockholder which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the Prospectus or the Canadian Prospectus.
(f) The Representatives shall have received at the time this Agreement is executed and on each Closing Date a signed letter from the Auditor each of BDO Xxxxxxx, LLP and Xxxxxxx Xxxxxxxx addressed to the Representative Representatives and dated dated, respectively, the date of this AgreementAgreement and each such Closing Date, in form and substance reasonably satisfactory to the Representative, Representatives containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters Underwriters with respect to the financial statements and certain financial information contained in the Registration Statement Statement, the Prospectus and the Disclosure PackageCanadian Prospectus.
(g) The Company shall have received an opinion from Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Financial Advisors, and (ii) on each Closing Date, a signed letter from the Auditor addressed Inc. related to the Representative and dated the date of such Closing Date(s)certain financial matters, in form and substance reasonably satisfactory to the Representative Representatives.
(h) The Representatives shall have received on each Closing Date from O’Melveny & Xxxxx LLP, counsel for the Company and certain of the Guarantors, an opinion, addressed to the Representatives and dated such Closing Date, substantially in the form previously agreed to.
(i) The Representatives shall have received on each Closing Date from Kraskin, Lesse & Xxxxxx, LLP, counsel for the Company, an opinion, addressed to the Representatives and dated such Closing Date, substantially in the form previously agreed to.
(j) The Representatives shall have received on each Closing Date from Xxxxxxxxx & Xxxxx, P.C., counsel for the Company and certain of the Guarantors, an opinion, addressed to the Representatives and dated such Closing Date, substantially in the form previously agreed to.
(k) The Representatives shall have received on each Closing Date from Xxxxxxx & Xxxx, X.X., counsel for the Company and certain of the Guarantors, an opinion, addressed to the Representatives and dated such Closing Date, substantially in the form previously agreed to.
(l) The Representatives shall have received on each Closing Date from Goodmans LLP, Canadian Counsel for the Company, an opinion, addressed to the Representatives and dated such Closing Date, substantially in the form previously agreed to.
(m) The Representatives shall have received on each Closing Date from each of O’Melveny & Xxxxx LLP and XxXxxxxxx Will & Xxxxx LLP, counsel for the Selling Stockholders, an opinion, addressed to the Representatives and dated such Closing Date, substantially in the form previously agreed to.
(n) The Representatives shall have received on each Closing Date from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, U.S. tax counsel for the Representatives, an opinion, addressed to the Representatives and dated such Closing Date, in a form reasonably satisfactory to the Representatives.
(o) The Separate Notes shall have been purchased from the Company and sold by the Underwriters.
(p) The Representatives shall have received on the Firm Securities Closing Date a certificate of the Company, addressed to the Representatives and dated such Closing Date, and executed by the chief financial officer of the Company containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements operating information, certain market and certain industry information, and the pro forma and forward-looking financial information contained in the Registration Statement and the Prospectus, substantially in the form previously agreed to.
(fq) On each Closing Date, the Representative The Company shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On on each Closing DateDate from O’Melveny & Xxxxx LLP, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as U.S. tax counsel for the Company, an opinion, addressed to the Company and dated such Closing Date, substantially in the form and substance reasonably satisfactory to counsel for the Underwriterspreviously agreed to.
(hr) All proceedings On or prior to the Firm Securities Closing Date and simultaneous with the Closing, the Credit Agreement shall have been duly and validly authorized, executed and delivered by the Company and the Share Exchanges and Share Repurchase shall have been consummated pursuant to legally enforceable terms.
(s) Proceedings taken in connection with the sale of the Firm Shares and the Option Shares Offered Securities as herein contemplated and the transactions contemplated by the Related Transaction Documents shall be reasonably satisfactory in form and substance to the Representative Representatives, and their counsel, and the Representatives shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP an opinion reasonably satisfactory to the Representatives, addressed to the Representatives and dated such Closing Date, with respect to the Offered Securities, the Registration Statement and the Prospectus, and such other related matters, as the Representatives may reasonably request, and the Company shall have furnished to Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(it) The Representative Representatives shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV V hereto.
(ju) The Shares Indenture shall have been duly executed and delivered by the Company, each of the Guarantors and the Trustee, and the Notes (and related Guarantees) shall have been duly executed and delivered by the Company and each of the Guarantors and duly authenticated by the Trustee.
(v) Each of the Related Transaction Documents shall be reasonably satisfactory in form and substance to the Representatives and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provisions thereof since the date of this Agreement.
(w) There shall not have been any announcement by any “nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company or any of its subsidiaries, or (B) it is reviewing its rating assigned to any debt securities of the Company or any of its subsidiaries with a view to possible downgrading, or with negative implications.
(x) The IDSs shall have been approved for listing on the NASDAQ Capital MarketAmerican Stock Exchange and the Toronto Stock Exchange, and the Class A Common Stock shall have been approved for listing on the Toronto Stock Exchange, subject in each case only to official notice of issuanceissuance and filing of customary documents.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(my) The Company and each Selling Stockholder shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
Appears in 1 contract
Samples: Underwriting Agreement (Brindlee Mountain Telephone Co)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company and the Selling Stockholders contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company and the Selling Stockholders shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, Statement and the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in to the best of their opinion knowledge (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have receivedreceived on the Firm Shares Closing Date a certificate, addressed to the Representatives and dated as of the Firm Shares Closing Date, of each Selling Stockholder to the effect that: (i) simultaneously with the execution representations, warranties and agreements of each Selling Stockholder in this Agreement were true and correct when made and are true and correct as of the Firm Shares Closing Date as if made on such date; (ii) each Selling Stockholder has performed all covenants and agreements and satisfied all conditions contained herein; and (iii) each Selling Stockholder has carefully examined the Registration Statement and the Prospectus and, to the best of the knowledge of such Selling Stockholder, (A) with respect to the information relating to such Selling Stockholder, as of the Effective Date, the Registration Statement and Prospectus did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 with respect to such Selling Stockholder which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement or the Prospectus.
(f) The Representatives shall have received, at the time this Agreement is executed and on each Closing Date a signed letter from the Auditor KPMG LLP addressed to the Representative Representatives and dated dated, respectively, the date of this AgreementAgreement and each such Closing Date, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives 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 and the Prospectus.
(fg) On each Closing Date, the Representative The Representatives shall have received on each Closing Date from Hxxxx & Hxxxxxx L.L.P., counsel for the favorable Company, an opinion, addressed to the Representatives and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentatives.
(gh) On each Closing Date, the Representative The Representatives shall have received on the favorable tax Firm Shares Closing Date from the respective counsel for each of the Selling Stockholders, an opinion, addressed to the Representatives and dated as of such Firm Shares Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentatives.
(hi) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives and their counsel, and the Representatives shall have received from Hxxx and Dxxx LLP a favorable opinion, addressed to the Representatives and dated such Closing Date, with respect to the Shares, the Registration Statement and the Prospectus, and such other related matters, as the Representatives may reasonably request, and the Company shall have furnished to Hxxx and Dxxx LLP such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(ij) The Representative Representatives shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV III hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent The Company shall have filed the Notification Form for Listing of Additional Shares with the Nasdaq National Market with respect to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated herebyShares.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company and each Selling Stockholder shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares and Warrants are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each the Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each the Closing Date a certificate, addressed to the Representative and dated such the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company Company, in their capacity as such officers, to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such the Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeMaterial Adverse Effect.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each the Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such the Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on the favorable opinionClosing Date from Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C., U.S. counsel for the Company, an opinion and negative assurance statement, addressed to the Representative and dated as of such the Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the The Representative shall have received on the favorable tax opinionClosing Date from Meitar Law Offices, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax Israeli counsel for the Company, an opinion and negative assurance statement, addressed to the Representative and dated the Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) The Representative shall have received on the Closing Date from [ ], counsel for the Depositary, an opinion, addressed to the Representative and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(i) The Representative shall have received on the Closing Date from Xxxx, xx Xxxxx, Xxxxxxx & Co., intellectual property counsel for the Company, an opinion and written negative assurance statement, addressed to the Representative and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(j) The Representative shall have received on the Closing Date from Xxxxx, Xxxxx, Xxxx, Xxxxxx, Xxxxxxx and Xxxxx, P.C., counsel for the Representative, a negative assurance statement, addressed to the Representative and dated as of the Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of such documents as they request for enabling them to pass upon such matters.
(k) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares Warrants as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel. The Shares shall have been delivered via the DTC system to the accounts of the Underwriters, and the Representative shall have received electronic copies of the Warrants executed by the Company.
(il) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto. In the event that Xxxxxxxxxxx & Co. Inc., in its sole discretion, agrees to release or waive any restriction set forth in a Lock-Up Agreement for an officer or director of the Company, and provides the Company with notice of the impending release or waiver at least three (3) business days before the effective date of such release or waiver (which release or waiver shall be substantially in the Form found at Exhibit B-1 attached hereto), the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit B-2 attached hereto through a major news service at least two (2) business days before the effective date of the release or waiver.
(jm) The Shares Company shall not have been approved for listing on taken any action to, or likely to have the NASDAQ effect of, delisting the ADSs, nor shall the Company have received any notification that the Nasdaq Capital Market, subject only to official notice of issuanceMarket is contemplating terminating such listing.
(kn) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the share capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s reasonable judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(lo) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Securities.
(mp) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Samples: Underwriting Agreement (Chemomab Therapeutics Ltd.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed performed, in all material respects respects, all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; and (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeMaterial Adverse Effect.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Lxxxxxxxxx Xxxxxxx LLP, counsel for the favorable opinionCompany, an opinion and negative assurance statement, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the The Representative shall have received the favorable tax opinionon each Closing Date from Mintz, dated as of such Closing DateLevin, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLCCohn, as tax Ferris, Glovsky and Popeo, P.C., intellectual property counsel for the Company, an opinion and negative assurance statement, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) The Representative shall have received on the Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Representative, a negative assurance statement, addressed to the Representative and dated as of such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of such documents as they request for enabling them to pass upon such matters.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto. In the event that Oxxxxxxxxxx & Co. Inc., in its sole discretion, agrees to release or waive any restriction set forth in a Lock-Up Agreement for an officer or director of the Company, and provides the Company with notice of the impending release or waiver at least three (3) Business Days before the effective date of such release or waiver (which release or waiver shall be substantially in the Form found at Exhibit A-1 attached hereto), the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit A-2 attached hereto through a major news service at least two (2) Business Days before the effective date of the release or waiver.
(jk) The Shares shall have been approved for listing quotation on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance., and the Company has taken no action designed to, or likely to have the effect of, delisting the Shares, nor has the Company received any notification that the Nasdaq Capital Market is contemplating terminating such listing.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (ix) the General Disclosure Package, nor (iiy) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On on each Closing DateDate from Gxxxxxxxx Txxxxxx, the Representative shall have received the favorable tax opinionLLP, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, an opinion, addressed to the Representative and dated such Closing Date, in the form attached to this Agreement as Exhibit B.
(g) The Representative shall have received on each Closing Date from Uxxxxx Zxxxxx, LLP, intellectual property counsel for the Company, an opinion, addressed to the Representative and dated such Closing Date, in the form attached to this Agreement as Exhibit C.
(h) The Representative shall have received on each Closing Date from White & Case LLP, counsel for the Representative, an opinion, addressed to the Representative and dated such Closing Date, which shall be reasonably satisfactory in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(hi) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(ij) The Representative shall have received copies of the Lock-up Up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jk) The Shares shall have been approved for listing quotation on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) The Representative shall have received on and as of (i) the date hereof and (ii) each Closing Date, a certificate of the chief financial officer of the Company confirming certain financial information included in the General Disclosure Package and the Prospectus, in form and substance reasonably satisfactory to the Representative.
(o) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents (including a Secretary’s Certificate) as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i1) the General Disclosure Package, nor (ii2) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeMaterial Adverse Effect.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Xxxxx Lovells US LLP, counsel for the favorable opinionCompany, an opinion and negative assurance statement, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the The Representative shall have received on each Closing Date from FischerBroyles LLP, intellectual property counsel for the favorable tax opinionCompany, an opinion and written negative assurances statement, addressed to the Representative and dated such Closing Date, in form and substance satisfactory to the Representative.
(h) The Representative shall have received on each Closing Date from Xxxxxx Xxxxxxx & Xxxxx LLP, general corporate counsel for the Company, an opinion and written negative assurances statement, addressed to the Representative and dated such Closing Date, in form and substance satisfactory to the Representative.
(i) The Representative shall have received on the Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Representative, a negative assurance statement, addressed to the Representative and dated as of such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, such documents as tax counsel they reasonably request for the Company, in form and substance reasonably satisfactory enabling them to counsel for the Underwriterspass upon such matters.
(hj) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(ik) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jl) The Shares shall have been approved for listing quotation on the NASDAQ Capital MarketNasdaq, subject only to official notice of issuance.
(km) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(ln) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mo) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430A. If the Company has elected to rely upon Rule 434, a term sheet shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period.
(c) The Representatives shall be satisfied that (i) the representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date; (ii) since the Effective Date, no event as occurred that should have been set forth in a supplement or amendment to the Prospectus that has not been set forth in an effective supplement or amendment and (iii) since the respective dates as of which information is given in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein, there has not been any material adverse change or any development involving a prospective material adverse change in the business, properties, financial condition or results of operations of the Company, and since such dates, the Company has not entered into any material transaction not referred to in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; ;
(ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained hereinon its part to be performed or satisfied hereunder on or prior to such Closing Date; (iii) they such officers have carefully examined the Registration Statement, Statement and the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their such officers’ opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, include any untrue statement of a material fact and did not 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, therein not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their such officers’ knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with the execution of this Agreement received a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) certificate on each Closing Date, a Date signed letter from by the Auditor addressed Secretary of the Company to the Representative and dated the date of such Closing Date(s)effect that, in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, the Secretary certifies as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received (A) the accuracy and completeness of the Company’s certificate of incorporation and bylaws, (B) the resolutions of the Board of Directors and any committee thereof relating to the offering contemplated hereby, (C) the form of stock certificate representing the Shares and (D) copies of all communications with the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
Commission; (jii) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, Agreement; (iii) no loss or damage (whether or not insured) to the property incumbency and signature of persons signing this Agreement, the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, Registration Statement and other related documents; (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any approval of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect Shares for listing on the transactions contemplated by this Agreement shall have been instituted or threatened Nasdaq National Market; and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered such other matters as a whole that makes it impractical or inadvisable in the RepresentativeUnderwriters’ judgment to proceed with the purchase or offering of the Shares as contemplated herebycounsel may reasonably request.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that each of the Registration Statement and the ADS Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the ADS Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, includednor (iii) as of the date it became effective, the ADS Registration Statement, included any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package ADS Registration Statement, the Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) The Representative shall have received on each Closing Date from each of Xxxxx Xxxxxx LLP and Xxxxxxx-Xxxxxxxx Korso Xxxxxx, counsel for the Company, an opinion and negative assurance statement, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to the Representative.
(g) The Representative shall have received on each Closing Date from Inspicos P/S, intellectual property counsel for the Company, an opinion and written negative assurances statement, addressed to the Representative and dated such Closing Date, in form and substance satisfactory to the Representative.
(h) On each the Closing Date, the Representative shall have received the favorable opinionopinion of Xxxxxx Xxxxxx Xxxxxx LLP, counsel for the Depositary, dated the Closing Date, addressed to the Representative in form and substance satisfactory to the Representative.
(i) The Representative shall have received on the Closing Date from each of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. and Accura Advokatpartnerselskab, counsel for the Representative, a negative assurance statement, addressed to the Representative and dated as of such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, such documents as counsel they request for enabling them to the Company, in form and substance reasonably satisfactory to counsel for the Underwriterspass upon such matters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(hj) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(ik) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto. In the event that Xxxxxxxxxxx & Co. Inc., in its sole discretion, agrees to release or waive any restriction set forth in a Lock-Up Agreement for an officer or director of the Company, and provides the Company with notice of the impending release or waiver at least three Business Days before the effective date of such release or waiver (which release or waiver shall be substantially in the Form found at Exhibit A-1 attached hereto), the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit A-2 attached hereto through a major news service at least two Business Days before the effective date of the release or waiver.
(jl) The Shares shall have been approved for listing quotation on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance, and the Company has taken no action designed to, or likely to have the effect of, delisting the Shares, nor has the Company received any notification that the Nasdaq Capital Market is contemplating terminating such listing.
(km) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s reasonable judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(ln) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mo) The Company and the Depositary shall have executed and delivered the Deposit Agreement and 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 Shares in accordance with the Deposit Agreement. The Company shall, prior to the Closing Date, as the case may be, deposit the Ordinary Shares to be represented by the Shares with the Depositary in accordance with the provisions of the Deposit Agreement and otherwise comply with the Deposit Agreement so that the ADSs will be issued by the Depositary against receipt of such Ordinary Shares and delivered to the Underwriters at the Closing Dates.
(p) At each Closing Date, the Representative shall have received a certificate from the Depositary satisfactory to the Representative with respect to the deposit with the Depositary of the underlying Ordinary Shares represented by the Shares against issuance of the ADRs evidencing the Shares, the execution, issuance, countersignature and delivery of the ADRs evidencing the Shares pursuant to the Deposit Agreement and such other matters related thereto as the Representative may reasonably request.
(q) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the The Registration Statement has become effective shall have been received by the Representative become effective, and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement Agreement, and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A430B, Rule 430A 430B information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated as of such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeMaterial Adverse Effect.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representative, 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, counsel for the favorable opinionCompany, an opinion and a negative assurance letter, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx shall have furnished to the Underwriters an opinion, as intellectual property counsel to the Company, addressed to the Representative and dated as of the Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Companyapplicable, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) The Representative shall have received on each Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Representative, an opinion, addressed to the Representative and dated as of such Closing Date, in form and substance reasonably satisfactory to the Representative.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Company Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to The Company shall have filed a Notification: Listing of Additional Shares with The Nasdaq Capital Market and received no objection thereto.
(l) The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened threatened, and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On the Firm Shares Closing Date, FINRA shall not have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleRule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules) shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence reasonably satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) shall be true and correct when made and in all material respects on and as of each Closing Date as if made on such date; provided, however, that such materiality qualifier shall not be applicable to any representation or warranty that is already qualified or modified by materiality or Material Adverse Effect in the text thereof. The Company shall have performed all covenants and agreements in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct in all material respects as of such Closing Date; provided, however, that such materiality qualifier shall not be applicable to any representation or warranty that is already qualified or modified by materiality or Material Adverse Effect in the text thereof; (ii) the Company has performed all of its covenants and agreements in all material respects all covenants and agreements and satisfied all conditions contained hereinherein required to be performed or satisfied by the Company; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the date of this Agreement, which is the most recent Effective Date of the Registration Statement, the Registration Statement did not and as of its date, the Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and as of the times described above such documents did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the ProspectusProspectus that has not been so disclosed; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Xxxxxx Godward Kronish LLP, counsel for the favorable Company, (i) an opinion, addressed to the Representative and dated as of such Closing Date, stating in effect the matters set forth on Exhibit B-1 hereto, and (ii) a negative assurance letter, addressed to the Representative and dated such Closing Date, stating in effect the matters set forth on Exhibit B-2 hereto (each with appropriate modifications reasonably acceptable to the Representative for any opinion or negative assurance letter delivered on any subsequent Closing Date).
(g) The Representative shall have received on each Closing Date from K&L Gates LLP, intellectual property counsel for the Company, an opinion, addressed to the Representative and dated such Closing Date, stating in effect the matters set forth on Exhibit C hereto (with appropriate modifications reasonably acceptable to the Representative for any opinion delivered on any subsequent Closing Date).
(h) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the General Counsel of the Company, stating in form and substance effect the matters set forth on Exhibit D hereto (with appropriate modifications reasonably satisfactory acceptable to counsel the Representative for the Underwritersany opinion delivered on any subsequent Closing Date).
(gi) On each Closing Date, the The Representative shall have received the from Xxxxxx & Xxxxxxx LLP, a favorable tax opinion, addressed to the Representative and dated as of such Closing Date, covering such matters as are customarily covered in transactions of Kxxxxx Voekler Cxxxxxxxxx this type, and the Company shall have furnished to Xxxxxx & Fxxxx PLC, Xxxxxxx LLP such documents as tax counsel they may reasonably request for the Company, in form and substance reasonably satisfactory purpose of enabling them to counsel for the Underwriterspass upon such matters.
(hj) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their its counsel.
(ik) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV III hereto.
(jl) The Shares shall have been approved for listing on the NASDAQ Capital Nasdaq Global Market, subject only to official notice of issuance, and the Company shall not have received any notice that it is not in compliance with the listing or maintenance requirements of Nasdaq.
(km) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company (other than as a result of the exercise of outstanding stock options or other equity-based rights described in the Registration Statement, the Statutory Prospectus, the General Disclosure Package and the Prospectus) or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the ------------------------------------------- Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a7(a)(i) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.Representatives.
(c) The representations and warranties of the Company and the Donors and the Selling Shareholder contained in this Agreement and in the certificates delivered pursuant to Section 3(dSections 6(d) and 6(e) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company and the Selling Shareholder shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct their capacities as of such Closing Date; such, to the effect that (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iiii) they have carefully examined the Registration Statement, the Prospectus, Prospectus and this Agreement and that the General Disclosure Package, representations and any individual Issuer Free Writing Prospectus and, in their opinion (A) as warranties of the Effective Date the Registration Statement Company in this Agreement are true and Prospectus did not include, correct on and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together such Closing Date with the General Disclosure Package, included, any untrue statement of a material fact same effect as if made on such Closing Date and did not omit to state a material fact the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be stated therein performed or necessary satisfied by it at or prior to make the statements therein, in light of the circumstances under which they were made, not misleadingsuch Closing Date, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (ivii) no stop order suspending the effectiveness of the Registration Statement has been issued and, and to the best of their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously received on each Closing Date a certificate, addressed to the Representatives and dated such Closing Date, of the Selling Shareholder, to the effect that the representations and warranties of the Selling Shareholder in this Agreement are true and correct on and as of such Closing Date with the execution of same effect as if made on such Closing Date and the Selling Shareholder has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(f) The Representatives shall have received at the time this Agreement is executed and on each Closing Date a signed letter from the Auditor KPMG LLP addressed to the Representative Representatives and dated dated, respectively, the date of this AgreementAgreement and each such Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, containing statements and information confirming that they are independent accountants within the meaning of the type ordinarily included Securities Act and the Rules, that the response to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in accountants’ “comfort letters” to underwriters with respect to effect that:
(i) in their opinion the audited financial statements and certain financial information contained statement schedules included in the Registration Statement and the Disclosure PackageProspectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Rules;
(ii) on the basis of a reading of the amounts included in the Registration Statement and the Prospectus under the headings "Prospectus Summary--Summary Consolidated Financial Data" and "Selected Consolidated Financial Data," carrying out certain procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter, a reading of the minutes of the meetings of the shareholders and directors of the Company, and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company as to transactions and events subsequent to the date of the latest audited financial statements, except as disclosed in the Registration Statement and the Prospectus, nothing came to their attention which caused them to believe that:
(A) the amounts in "Prospectus Summary--Summary Consolidated Financial Data" and "Selected Consolidated Financial Data" included in the Registration Statement and the Prospectus do not agree with the corresponding amounts in the audited and unaudited financial statements from which such amounts were derived; or
(B) with respect to the Company, there were, at a specified date not more than five business days prior to the date of the letter, any increases in the current liabilities and long-term liabilities of the Company or any decreases in net income or in working capital or the shareholders' equity in the Company, as compared with the amounts shown on the Company's audited balance sheet for the fiscal year ended December 31, 1998 and the three months ended March 31, 1999 included in the Registration Statement;
(iii) they have performed certain other procedures as may be permitted under Generally Acceptable Auditing Standards as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement and the Prospectus and reasonably specified by the Representatives agrees with the accounting records of the Company; and
(iv) based upon the procedures set forth in clauses (ii) and (iii) above and a reading of the amounts included in the Registration Statement under the headings "Prospectus Summary--Summary Consolidated Financial Data" and "Selected Consolidated Financial Data" included in the Registration Statement and Prospectus and a reading of the financial statements from which certain of such data were derived, nothing has come to their attention that gives them reason to believe that the "Prospectus Summary--Summary Consolidated Financial Data" and "Selected Consolidated Financial Data" included in the Registration Statement and Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Rules or that the information set forth therein is not fairly stated in relation to the financial statements included in the Registration Statement or Prospectus from which certain of such data were derived and are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement and Prospectus. References to the Registration Statement and the Prospectus in this paragraph (g) are to such documents as amended and supplemented at the date of the letter.
(g) The Representatives shall have received on each Closing Date from Nixon, Hargrave, Devans & Xxxxx LLP, counsel for the Company and the Selling Shareholder, an opinion, addressed to the Representatives and dated such Closing Date, and stating in effect that:
(i) Each of the Company and its Non-Banking Subsidiaries (as set forth on Schedule II-A) has been duly organized and is validly existing as a corporation in good standing under the laws of the State of New York; and each of its Banking Subsidiaries (as set forth on Schedule II) has been duly organized and is validly existing and in good standing (i) with respect to Wyoming County Bank, The Pavilion State Bank and First Tier Bank & Trust, as banking corporations formed pursuant to Article III of the New York Banking Law and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements National Bank of Geneva, as a national banking association formed under the laws of the United States (collectively, the "Subsidiaries"). Each of the Company and certain financial information its Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its businesses makes such qualification necessary, except for such jurisdictions where the failure to so qualify individually or in the aggregate would not have a Material Adverse Effect.
(ii) Each of the Company and its Subsidiaries has all requisite corporate power and authority to own, lease and license its assets and properties and conduct its business as now being conducted and as described in the Registration Statement and the Prospectus and, with respect to the Company, to enter into, deliver and perform this Agreement and to issue and sell the Shares to be issued by it.
(iii) The Company has an authorized and issued capital stock as set forth in the Registration Statement and the Prospectus under the caption "Capitalization"; the certificates evidencing the Shares are in due and proper legal form and have been duly authorized for issuance by the Company; all of the outstanding shares of Common Stock of the Company have been duly and validly authorized and issued and are fully paid and nonassessable and none of them was issued in violation of any preemptive or other similar right. The Shares to be issued by the Company, when issued and sold pursuant to this Agreement, will be duly and validly issued, outstanding, fully paid and nonassessable and none of them will have been issued in violation of any preemptive or other similar right. There are no preemptive rights or any restrictions upon the voting or transfer of any securities of the Company pursuant to the Company's Certificate of Incorporation or by-laws or other governing documents or any other instrument to which the Company is a party or by which it may be bound. To the best of such counsel's knowledge, except as set forth in the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of any shares of Common Stock (other than the Shares) or any security convertible into, exercisable for, or exchangeable for Common Stock. The capital stock of the Company conforms in all material respects to the descriptions thereof contained in the Registration Statement and the Prospectus.
(fiv) On The issued and outstanding shares of capital stock of each Closing Dateof the Company's Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and, except for (i) 90 shares of the Representative shall have received common stock of NBG (representing a 0.90% fully diluted equity interest in NBG) and (ii) 306.25 shares of the favorable opinioncommon stock of WCB (representing a 0.35% fully diluted equity interest in WCB), dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to are owned directly by the Company, free and clear of any perfected security interest or, to the knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, other than those contained in form the Registration Statement and substance reasonably satisfactory the Prospectus.
(v) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares to be issued by the Company. This Agreement has been duly and validly authorized, executed and delivered by the Company.
(vi) Neither the execution, delivery and performance of this Agreement by the Company nor the consummation of any of the transactions contemplated hereby (including the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or any event which with notice or lapse of time, or both, would constitute a default) under, or require consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or the Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, note or other agreement or instrument of which such counsel is aware and to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries or any of their properties or businesses is bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation of which such counsel is aware or violate any provision of the charter or by-laws of the Company or any Subsidiary.
(vii) To the best of such counsel's knowledge, no default exists, and no event has occurred which with notice or lapse of time, or both, would constitute a default in the due performance and observance of any term, covenant or condition by the Company or the Subsidiaries of any indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which any of their assets, properties or businesses may be bound or affected, where the consequences of such default individually or in the aggregate would have a Material Adverse Effect.
(viii) To the best of such counsel's knowledge, the Company and its Subsidiaries are not in violation of any (A) term or provision of their charter or by-laws or (B) any franchise, license, permit, judgment, decree, order, statute, rule or regulation (except where the consequences of the violation of this subsection (B), individually or in the aggregate, would not have a Material Adverse Effect).
(ix) No consent, approval, authorization or order of any court or governmental agency or regulatory body is required for the execution, delivery or performance of this Agreement by the Company or the consummation of the transactions contemplated hereby, except such as have been obtained under the Securities Act and such as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the several Underwriters.
(gx) On each Closing DateTo the best of such counsel's knowledge, there is no litigation or governmental or other proceeding or investigation, before any court or before or by any public body or board pending or threatened against, or involving the assets, properties or businesses of, the Representative shall Company or its Subsidiaries which individually or in the aggregate could have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwritersa Material Adverse Effect.
(hxi) All proceedings taken The statements in connection the Prospectus under the captions "Risk Factors--Our Business is Highly Regulated," "Management's Discussion and Analysis of Financial Condition and Results of Operations-- Financial Condition--Government Guarantee Programs," "Supervision and Regulation," "Management--Stock Option Plan," "Management--Defined Benefit Plan," "Certain Related Transactions," "Description of Capital Stock," "Shares Eligible for Future Sale" and Item 14 of the Registration Statement, insofar as such statements constitute a summary of documents referred to therein or matters of law, are fair summaries in all material respects and accurately present the information called for with respect to such documents and matters. Accurate copies of all contracts and other documents of which such counsel is aware that are required to be filed as exhibits to, or described in, the Registration Statement have been so filed with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity Commission or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given are fairly described in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requestedcase may be.
Appears in 1 contract
Samples: Underwriting Agreement (Financial Institutions Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters Underwriter to purchase the Shares on the Closing Date are subject to the satisfaction of each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) All of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when on the Closing Date, with the same force and effect as if made and on and as of each the Closing Date as if made on such dateDate. The Company shall have performed or complied in all material respects with all covenants of the agreements herein contained and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied complied with by it at the Company on or before such prior to the Closing Date.
(di) The Representative Registration Statement shall have received become effective (or if (i) a post-effective amendment thereto (including any such amendment required to be filed pursuant to Rule 430A under the Act) or (ii) a new or additional registration statement pursuant to Rule 462 under the Act has been filed, such post-effective amendment or new or additional registration statement (as applicable) shall have become effective) not later than the opening of business on each Closing Date a certificatethe first full business day next following the date of this Agreement or at such later date and time as the Underwriter may approve in writing, addressed to (ii) at the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has shall have been issued and, to their knowledge, and no proceedings for that purpose shall have been instituted commenced or are shall be pending under before or contemplated by the Securities Act; Commission and every comment by or request for additional information on the part of the Commission or any securities commission or regulatory authority of the several states or any foreign jurisdiction shall have been responded to or complied with in all material respects and (viii) no stop order suspending the sale of the Shares shall have been issued and no proceeding for that purpose shall have been commenced and be pending before any securities regulators, and the Company shall not have received notice of the contemplation of any such issuance by any such securities regulator, in each case set forth in this clause (iii) that, in the Underwriter's opinion, would materially adversely affect the offering of the Shares.
(c) Subsequent to the effective date of this Agreement, except as set forth in or contemplated by the Registration Statement and the Prospectus, (i) there has shall not occurred have been any Material Adverse Change, or any development involving a prospective Material Adverse Change, whether or not arising in the ordinary course of business of the Company, (ii) there shall not have been any change, or any development involving a prospective material adverse change change, in the assets, properties, condition, financial or otherwise, capital stock or in the results long-term debt of operations, business affairs the Company or business prospects any of its Subsidiaries (other than as described a result of borrowings (revolving or other) for working capital incurred in the Registration Statementordinary course of business) and (iii) neither the Company nor any of its Subsidiaries shall have incurred any liability or obligation, direct or contingent, which is material to the General Disclosure Package Company and its Subsidiaries, taken as a whole and which has materially changed the Prospectus) financial position of the Transaction Entities Company and their Subsidiaries considered its Subsidiaries, taken as a whole.
(d) On the Closing Date, the Underwriter shall have received a certificate dated the Closing Date, signed by Xx. Xxxxxx X. Xxxxxxxx and Xx. Xxxxxx X. Jepsen, in their capacities as (A) the President and Chief Executive Officer and (B) Executive Vice President and Chief Financial Officer of the Company, respectively, confirming the matters set forth in paragraphs (a), (b), and (c)(i) of this Section 9 and that the Company has complied with all of the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied by the Company on or prior to the Closing Date.
(e) The Representative All the representations and warranties of each Selling Stockholder contained in this Agreement shall be true and correct on the Closing Date with the same force and effect as if made on and as of the Closing Date, and the Underwriter shall have received: (i) simultaneously with received on the execution of this Agreement Closing Date a signed letter certificate dated the Closing Date from the Auditor addressed each Selling Stockholder to such effect and to the Representative effect that such Selling Stockholder has complied with all of the agreements and dated satisfied all of the date of this Agreementconditions herein contained and required to be complied with or satisfied by such Selling Stockholder on or prior to the Closing Date.
(f) The Underwriter shall have received on the Closing Date an opinion and negative assurance letter (each, in form and substance reasonably satisfactory to the RepresentativeUnderwriter), containing statements dated the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special counsel for the Company and information the Selling Stockholders. The opinion and negative assurance letter of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP shall be rendered to the Underwriter at the request of the type ordinarily included Company and the Selling Stockholders and so state therein.
(g) The Underwriter shall have received on the Closing Date an opinion (in form and substance reasonably satisfactory to the Underwriter), dated the Closing Date, of Xxxxxx X. Xxxxxxx, counsel for the Company, with respect to the Company and its Subsidiaries. The opinion of Xxxxxx X. Xxxxxxx shall be rendered to the Underwriter at the request of the Company and shall so state therein.
(h) The Underwriter shall have received on the Closing Date one or more opinions, dated the Closing Date, of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriter, in form and substance reasonably satisfactory to the Underwriter.
(i) The Underwriter shall have received letters, dated the date of this Agreement and the Closing Date, in form and substance reasonably satisfactory to the Underwriter, from Deloitte & Touche LLP, independent public accountants’ “comfort letters” to underwriters , with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and Prospectus and/or incorporated therein by reference.
(iij) [reserved].
(k) The Shares shall have been duly listed on each the NYSE.
(l) The Underwriter shall have received on the Closing Date, a signed letter from certificate of each Selling Stockholder who is not a U.S. Person (as defined under the Auditor addressed Internal Revenue Code of 1986, as amended (the "Code") to the Representative and dated the date of effect that such Closing Date(s)Selling Stockholder is not a U.S. Person, in form and substance reasonably satisfactory to the Representative 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 which certificate may be in the Registration Statement form of a properly completed and the Prospectusexecuted Internal Revenue Service ("IRS") Form W-8 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(fm) On The Underwriter shall have received from each Selling Stockholder who is a U.S. Person (as defined under the Code) on the Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, a properly completed and executed IRS Form W-9 (or other applicable form or statement specified by IRS regulations in form and substance reasonably satisfactory to counsel for the Underwriterslieu thereof).
(gn) On each Closing DateSubsequent to the effective date of this Agreement, there shall not have been any decrease in the Representative shall have received the favorable tax opinion, dated as rating of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, 's existing bank credit facility by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in form and substance reasonably satisfactory to counsel for any such rating or of a possible change in any such rating that does not indicate the Underwritersdirection of the possible change.
(ho) Xxxxxx & Xxxxxxx LLP shall have been furnished with such documents as they may reasonably require for the purpose of enabling them to review or pass upon the matters referred to in this Section 9. All proceedings taken opinions, certificates, letters and other documents required by this Section 9 to be delivered by the Company will be in connection compliance with the sale of the Firm Shares provisions hereof if and the Option Shares as herein contemplated shall be only if they are reasonably satisfactory in form and substance to the Representative and their counsel.
(i) Underwriter. The Representative shall have received Company will furnish the Underwriter with such conformed copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Marketsuch opinions, subject only to official notice of issuance.
(k) Subsequent to the execution certificates, letters and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative Underwriter or its counsel shall have reasonably requestedrequest.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430A. If the Company has elected to rely upon Rule 434, a term sheet shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, representations and warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained hereinherein required to be performed or satisfied by it at or prior to such Closing Date; (iii) they have carefully examined the Registration Statement, Statement and the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with , at the execution of time this Agreement is executed and on each Closing Date a signed letter from the Auditor addressed to the Representative Representatives and dated dated, respectively, the date of this AgreementAgreement and each such Closing Date, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives 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 and the Prospectus.
(f) On each Closing Date, the Representative The Representatives shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On on each Closing DateDate from Gxxxxxxxx Dxxxxxx Xxxxxx Vxxxxxxxxx Xxxxxxxx & Hxxxxxxxx, the Representative shall have received the favorable tax opinionLLP, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance an opinion, addressed to the Representative Representatives and their counsel.dated such Closing Date, and stating in effect that:
(i) The Representative shall have received copies Company has been duly organized and is validly existing as a corporation in good standing under the laws of the Lock-up Agreements executed by each entity or person listed on Schedule IV heretoState of Delaware. The Company is duly qualified to transact business and is in good standing as a foreign corporation in California.
(jii) The Shares shall have been approved for listing on the NASDAQ Capital MarketCompany has all requisite corporate power and authority to own, subject only lease and operate its properties and to official notice of issuance.
(k) Subsequent to the execution conduct its business as now being conducted and delivery of this Agreement or, if earlier, the dates as of which information is given described in the Registration Statement, Statement and the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.Prospectus and
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Securities are subject to each of the following terms and conditions:
(a) Notification that the The Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d3(e) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have reasonably determined, and advised the Company, that the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto contains an untrue statement of fact which, in the Representative’s reasonable opinion, is material, or omits to state a fact which, in the Representative’s reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(e) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus there has not occurred been any material adverse change Material Adverse Effect or any event that is likely to result in a Material Adverse Effect, whether or not arising from transactions in the assets, properties, condition, financial or otherwise, or in the results ordinary course of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholebusiness.
(ef) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor and Mxxxxx LLP addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor and Mxxxxx LLP addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(fg) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx Fulbright & Fxxxx PLCJxxxxxxx LLP, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(gh) On each Closing Date, the Representative shall have received the favorable tax intellectual property legal opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax from intellectual property legal counsel for to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(hi) On each Closing Date, there shall have been furnished to the Underwriters the negative assurance letter of Hxxxxx Xxxxxxx & Exxxx LLP, counsel to the Underwriters, dated such Closing Date, as applicable, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters.
(j) All proceedings taken in connection with the sale of the Firm Shares Securities and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(ik) The Representative shall have received copies of the Lock-up Agreements in form and substance reasonably satisfactory to counsel for the Underwriters executed by each entity or person listed on Schedule IV III hereto.
(jl) The Shares Securities shall have been approved for listing on the [NASDAQ Capital Market/NYSE MKT] and satisfactory evidence of such action shall have been provided to the Representative. The Company shall have taken no action designed to, subject only or likely to official notice have the effect of issuanceterminating the registration of the Common Stock and Warrants under the Exchange Act or delisting or suspending from trading the Common Stock and Warrants from the [NASDAQ Capital Market/NYSE MKT], nor has the Company received any information suggesting that the Commission or [NASDAQ Capital Market/NYSE MKT] is contemplating terminating such registration or listing. The Shares, the Warrants and shares of Common Stock underlying the Warrants and Representative’s Warrants shall be DTC eligible.
(km) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany or its subsidiaries, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(ln) On the Firm Shares Securities Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(mo) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as required by this Agreement, or if any of the opinions and certificates mentioned above shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, the obligations of the Underwriters to consummate the Closing hereunder may be cancelled by the Representative after notice of such cancellation shall have be given to the Company. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430A. If the Company has elected to rely upon Rule 434, a term sheet shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period.
(c) The Representative shall be satisfied that (i) the representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct correct, in all material respects, when made and on and as of each Closing Date as if made on such date; (ii) since the Effective Date, no event has occurred that should have been set forth in a supplement to the Prospectus that has not been set forth in an effective supplement and (iii) since the respective dates as of which information is given in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein, there has not been any material adverse change or any development involving a prospective material adverse change in the business, properties, financial condition or results of operations of the Company, and since such dates, the Company has not entered into any material transaction not referred to in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein. The Company shall have performed have, in all material respects respects, performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, representations and warranties and agreements of the Company set forth in Section 2 of this Agreement were true and correct when made and are true and correct in all material respects as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements set forth in Section 4 of this Agreement and satisfied all conditions contained hereinset forth in Section 3 of this Agreement; (iii) they have carefully examined the Registration Statement, Statement and the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion confirm that (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement received on each Closing Date a signed letter from the Auditor certificate, addressed to the Representative and dated such Closing Date, of the secretary of the Company to the effect that as of such Closing Date the secretary certifies as to the accuracy of the Company’s charter and bylaws, the resolutions of the Board of Directors relating to the offering contemplated hereby, the form of stock certificate representing the Shares, and copies of all communications with the Commission; as to the execution and delivery of this Agreement; as to the incumbency and signature of persons signing this Agreement, the Registration Statement and other related documents; as to the approval of the Shares for listing on the Nasdaq National Market; as to the Company’s compliance with all agreements and performance or satisfaction of all conditions required hereunder; as to the consideration received for all outstanding shares of the Company’s Class B Common Stock; and as to such other matters as Underwriters’ counsel may reasonably request.
(f) The Representative shall have been furnished evidence in the usual written or electronic form from the appropriate authorities of the several jurisdictions in which the character of the property owned or leased or the nature of the business transacted by it makes such good standing or qualification necessary, except for such jurisdiction where the failure to qualify or be in good standing, would not reasonably be expected to have a Material Adverse Effect, or other evidence satisfactory to the Representative, of the good standing and qualifications of the Company.
(g) The Representative shall have received, at the time this Agreement is executed a signed letter from Ernst & Young LLP addressed to the Representative and dated, respectively, the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(fh) On The Representative shall have received, on each Closing Date, a signed letter (the Representative shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx “bring-down letter”) from Ernst & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance Young LLP addressed to the Representative and their counseldated, respectively, the date of Each Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three business days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by its letter delivered to the Representatives concurrently with the execution of this Agreement pursuant to Section 3(g).
(i) The Representative shall have received on each Closing Date (i) from Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel for the Company, an opinion, addressed to the Representative and dated such Closing Date, in substantially the form attached hereto as Exhibit A; (ii) from Xxxxxxx Xxxx & Xxxxxxxxx LLP, special communications counsel for the Company, an opinion, addressed to the Representative and dated such Closing Date, in substantially the form attached hereto as Exhibit B; and (iii) from the Company, an opinion of the corporate counsel, addressed to the Representative and dated such Closing Date, in substantially the form attached hereto as Exhibit C.
(j) The legality and sufficiency of the sale of the Shares hereunder and the validity and form of the certificates representing the Shares, all corporate proceedings and other legal matters incident to the foregoing, and the form of the Registration Statement and of the Prospectus (except as to the financial statements and financial information contained therein) shall have been approved at or prior to the Closing Date by XxXxxxxxx Will & Xxxxx LLP, counsel for the Underwriters. The Representative shall have received on each Closing Date from XxXxxxxxx Will & Xxxxx LLP an opinion, addressed to the Representative and dated such Closing Date, with respect to the issuance and sale of the Shares, the Registration Statement and the Prospectus and such other related matters as the Underwriters reasonably may request and such counsel shall have received such documents and other information as they request to enable them to pass upon such matters.
(k) The Representative shall have received copies of the Locklock-up Agreements agreements executed by each entity all of the directors, executive officers and holders of more than one percent (1%) of the Company’s outstanding capital stock (or person listed on Schedule IV heretooptions or warrants exercisable therefor).
(jl) The Shares shall have been approved for listing quotation on the NASDAQ Capital Nasdaq National Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Offered ADSs are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated as of such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i1) the General Disclosure Package, nor (ii2) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Xxxxx Day, United States counsel for the favorable opinionCompany, an opinion and negative assurances, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel in a form acceptable to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the The Representative shall have received the favorable tax opinionon each Closing Date from Xxxxx Day, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax Hong Kong counsel for the Company, an opinion, addressed to the Representative and dated such Closing Date, in a form and substance reasonably satisfactory acceptable to the Representative.
(h) The Representative shall have received on each Closing Date from Schinders Law, PRC counsel for the Underwriters, an opinion, addressed to the Representative and dated such Closing Date, in a form acceptable to the Representative.
(hi) The Representative shall have received on each Closing Date from DLA Piper Asia LLP, counsel for the Representative, an opinion and negative assurances, addressed to the Representative and dated such Closing Date, in a form agreed upon by the Representative and DLA Piper Asia LLP.
(j) The Representative shall have received on each Closing Date from Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel for the Depositary, an opinion, addressed to the Representative and dated such Closing Date, to the effect that:
(i) The Deposit Agreement has been duly authorized, executed and delivered by the Depositary and assuming due authorization, execution and delivery thereof by the Company, constitutes a legal, valid and binding instrument enforceable against the Depositary in accordance with its terms except to the extent that (A) enforcement thereof may be limited by (1) bankruptcy, reorganization, insolvency (including, without limitation, all laws relating to fraudulent transfer), moratorium or other laws now or hereafter in effect relating to or affecting creditors’ rights generally and (2) general principles of equity (regardless of whether enforceability is considered in a proceeding in law or in equity), and (B) rights to indemnity and contribution thereunder may be limited by United States federal or state securities laws or public policy; the statements in the Prospectus under the heading “Description of American Depositary Shares,” insofar as such statements purport to describe the Depositary and summarize certain provisions of the Deposit Agreement, the ADSs and the ADRs, are fair and accurate.
(ii) The Depositary has full power and authority and legal right to execute and deliver the Deposit Agreement and to perform its obligations thereunder.
(iii) The ADRs and the ADSs evidenced thereby, when issued by the Depositary against deposit of Ordinary Shares in accordance with the terms and conditions of the Deposit Agreement and the ADR Registration Statement (defined below) will be duly and validly issued and will entitle the holders and beneficial owners thereof to the rights specified therein and in the Deposit Agreement.
(iv) The registration statement on Form F-6 (File No. 333-11028) of the Company (the “ADR Registration Statement”) is effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the ADR Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened, and the ADR Registration Statement, and each amendment (if any) comply as to form in all material respects with the applicable requirements of the Securities Act and the Rules.
(k) All proceedings taken in connection with the sale of the Firm Shares ADSs and the Option Shares ADSs as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(il) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV V hereto.
(jm) The Shares Offered ADSs shall have been approved for listing on the NASDAQ Capital Global Market, subject only to official notice of issuance.
(kn) Subsequent The Company and the Depositary shall have executed and delivered any necessary amendments to the execution Deposit Agreement in form and delivery of this substance satisfactory to the Representative and the Deposit Agreement or, if earlier, shall be in full force and effect.
(o) The Representative shall be reasonably satisfied that since the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ Representatives judgment to proceed with the purchase or offering of the Shares Offered ADSs as contemplated hereby.
(lp) On or before the Firm Shares ADSs Closing Date, FINRA shall have, pursuant to the “Same-Day Clearance Option,” automatically issued a “conditional no-objections” opinion with respect to the Base Prospectus and a “no objections” opinion with respect to the final Prospectus, which opinions may be subject to further review and verification by FINRA.
(q) FINRA shall have confirmed that it has not raised any no objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Offered ADSs.
(mr) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that each of the Registration Statement and the ADS Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the ADS Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, includednor (iii) as of the date it became effective, the ADS Registration Statement, included any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package ADS Registration Statement, the Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) The Representative shall have received on each Closing Date from each of Xxxxx Xxxxxx LLP and Xxxxxxx-Xxxxxxxx Korso Xxxxxx, counsel for the Company, an opinion and negative assurance statement, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to the Representative.
(g) The Representative shall have received on each Closing Date from Inspicos P/S, intellectual property counsel for the Company, an opinion and written negative assurances statement, addressed to the Representative and dated such Closing Date, in form and substance satisfactory to the Representative.
(h) On each the Closing Date, the Representative shall have received the favorable opinionopinion of Xxxxxx Xxxxxx Xxxxxx LLP, counsel for the Depositary, dated the Closing Date, addressed to the Representative in form and substance satisfactory to the Representative.
(i) The Representative shall have received on the Closing Date from each of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. and Accura Advokatpartnerselskab, counsel for the Representative, a negative assurance statement, addressed to the Representative and dated as of such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, such documents as counsel they request for enabling them to the Company, in form and substance reasonably satisfactory to counsel for the Underwriterspass upon such matters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(hj) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(ik) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jl) The Shares shall have been approved for listing quotation on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance, and the Company has taken no action designed to, or likely to have the effect of, delisting the Shares, nor has the Company received any notification that the Nasdaq Capital Market is contemplating terminating such listing.
(km) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s reasonable judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(ln) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mo) The Company and the Depositary shall have executed and delivered the Deposit Agreement and 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 Shares in accordance with the Deposit Agreement. The Company shall, prior to the Closing Date, as the case may be, deposit the Ordinary Shares to be represented by the Shares with the Depositary in accordance with the provisions of the Deposit Agreement and otherwise comply with the Deposit Agreement so that the ADSs will be issued by the Depositary against receipt of such Ordinary Shares and delivered to the Underwriters at the Closing Dates.
(p) At each Closing Date, the Representative shall have received a certificate from the Depositary satisfactory to the Representative with respect to the deposit with the Depositary of the underlying Ordinary Shares represented by the Shares against issuance of the ADRs evidencing the Shares, the execution, issuance, countersignature and delivery of the ADRs evidencing the Shares pursuant to the Deposit Agreement and such other matters related thereto as the Representative may reasonably request.
(q) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430ARules 430A or 430B, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule Rules 430A or 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.Rules 430A and 430B.
(c) The representations and warranties of the Company and the Selling Stockholders contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company and the Selling Stockholders shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company Company, in their respective capacities as such, to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed performed, in all material respects respects, all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been but was not set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received on each Closing Date a certificate (which may be provided by his, her or its attorney-in-fact appointed pursuant to the Power of Attorney) addressed to the Representative and dated such Closing Date, of each Selling Stockholder, to the effect that: (i) the representations, warranties and agreements of each Selling Stockholder in this Agreement were true and correct when made and are true and correct as of such Closing Date and (ii) each Selling Stockholder has performed in all material respects all covenants and agreements and satisfied all conditions contained herein.
(f) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the each Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the each Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(fg) On each Closing Date, the The Representative shall have received on each Closing Date from Xxxxxxxx and Xxxxx LLP, outside counsel for the favorable opinionCompany, and Xxxxx Xxxxxxxx Love, General Counsel of the Company, opinions, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel each in form and substance acceptable to the CompanyRepresentative.
(h) The Representative shall have received on the Firm Shares Closing Date from Xxxxxxxx and Xxxxx LLP, an opinion with respect to the Selling Stockholders other than Xxxxxxx Xxxxxxxx Master Fund, Ltd. and Clinton Spotlight Master Fund, L.P. (the “Clinton Funds”), addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory acceptable to counsel for the Underwriters.
(g) On each Closing Date, the Representative. The Representative shall have received on the favorable tax opinionFirm Shares Closing Date from counsel to the Clinton Funds an opinion with respect to the Clinton Funds, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory acceptable to the Representative.
(i) The Representative shall have received on each Closing Date from Ropes & Xxxx LLP, counsel for the UnderwritersRepresentative, an opinion, addressed to the Representative and dated such Closing Date, in form and substance acceptable to the Representative.
(hj) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their its counsel.
(ik) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV III hereto.
(jl) The Shares Common Stock shall have been approved for listing continue to be listed on the NASDAQ Capital Market, subject only to official notice of issuanceNasdaq.
(km) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(ln) On or prior to the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mo) The Company and each Selling Stockholder shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives, and the Prospectus shall have been timely filed with the Commission pursuant to Rule 424(b) of the Rules and in accordance with Section 4(a5(a) of this Agreement hereof, and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleRule.
(b) (i) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been issued or shall be in effect and effect, (ii) no stop order suspending the effectiveness of the Registration Statement shall be in effect and effect, (iii) no proceedings for such the purpose of preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any “free writing prospectus” (as defined by Rule 405 of the Rules) or suspending the effectiveness of the Registration Statement shall be pending before or threatened by the Commission, and (iv) any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A430A of the Rules, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A of the Rules shall have been transmitted to timely filed with the Commission for filing pursuant to Rule 424(b) within of the prescribed time period Rules and the Company shall have provided evidence satisfactory to the Underwriters Representatives of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430A of the Rules.
(c) The representations and warranties of the Company and the Selling Stockholders contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) hereof shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company and the Selling Stockholders shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before each such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained hereinherein required to be performed or satisfied by the Company; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i1) the General Disclosure Package, nor (ii2) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and as of the times described above such documents did not omit to state a material fact required to be stated therein or necessary 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 which that should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act.
(e) The Representatives shall have received on each Closing Date a certificate, addressed to the Representatives and dated such Closing Dates, of each Selling Stockholder to the effect that: (i) the representations, warranties and agreements of such Selling Stockholder in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) such Selling Stockholder has performed all covenants and agreements and satisfied all conditions contained herein required to be performed or satisfied by such Selling Stockholder; and (viii) there has not occurred to the extent that any material adverse change in the assets, properties, condition, financial statements or otherwise, or in the results of operations, business affairs or business prospects (as described omissions made in the Registration Statement, the Statutory Prospectus, the Prospectus or any Issuer Free Writing Prospectus (or any amendments thereof or supplements thereto) are made in reliance upon, and in conformity with, the information furnished in writing by or on behalf of such Selling Stockholder specifically for use therein, (A) with respect to the information relating to such Selling Stockholder, as of the Effective Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (1) the General Disclosure Package Package, nor (2) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and as of the times described above such documents did not omit to state a material fact required to be stated therein or necessary 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 with respect to such Selling Stockholder that should have been set forth in a supplement or otherwise required an amendment to the Registration Statement or the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(ef) The Representative Representatives shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Initial Auditor addressed to the Representative Representatives and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, 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 and the General Disclosure Package, ; and (ii) on each Closing Date, a signed letter from the Initial Auditor addressed to the Representative Representatives and dated the date of such Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative Representatives, 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 and the Prospectus.
(fg) On each Closing Date, the Representative The Representatives shall have received received: (i) simultaneously with the favorable opinion, dated as execution of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel this Agreement a signed letter from the Auditor addressed to the CompanyRepresentatives and dated the date of this Agreement, in form and substance reasonably satisfactory to counsel for the Underwriters.
Representatives, 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 and the General Disclosure Package; and (gii) On on each Closing Date, a signed letter from the Representative shall have received Auditor addressed to the favorable tax opinion, Representatives and dated as the date of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to the Representatives, 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 and the Prospectus.
(h) The Representatives shall have received on each Closing Date from Wxxxxx Xxxxxx Pxxxxxxxx Xxxx and Dxxx, LLP, counsel for the Company, an opinion, addressed to the Representatives and dated such Closing Date, in form attached hereto as Exhibit D.
(i) The Representatives shall have received on each Closing Date from the respective counsel for each of the Selling Stockholders, as indicated in Schedule II hereto, with respect to each of the Selling Stockholders for whom they are acting as counsel, on the Closing Date at which such Selling Stockholders are selling Shares, an opinion, addressed to the Representatives and dated such Closing Date, in form attached hereto as Exhibit E.
(j) The Representatives shall have received on each Closing Date from Bxxxxxx MxXxxxxxx LLP, counsel for the Underwriters, an opinion, addressed to the Representatives and dated such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(hk) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives and their counselcounsel for the Underwriters.
(il) The Representative Representatives shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV III hereto.
(jm) The Shares shall have been approved listed for listing quotation on the NASDAQ Capital Nasdaq Global Market, subject only to official notice of issuance.
(kn) Subsequent to The Representatives shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company (other than as a result of the exercise of outstanding stock options, warrants or other rights described in the Registration Statement, the Statutory Prospectus, General Disclosure Package and the Prospectus) or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other material transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in have a material reduction in the future earnings of the Transaction EntitiesMaterial Adverse Effect, (iii) no loss or damage (whether or not insured) to the property or assets of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties or assets that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened threatened, and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole Company that makes it impractical or inadvisable inadvisable, in the Representative’ judgment of the Representatives, to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(mo) The Company and each Selling Stockholder shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives and counsel for the Underwriters shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares on each Closing Date are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the The Prospectus shall have been timely filed with the Commission in accordance with Section 4(a6(A)(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement Statements shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement Statements or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.Representatives.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d5(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The date and the Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) that the representationssigners of such certificate have carefully examined the Registration Statements, the Prospectus and this Agreement and that the representations and warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct on and as of such Closing Date; (ii) Date with the same effect as if made on such Closing Date and the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since The Representatives shall have received on the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to Time, at the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of time this Agreement is executed and on each Closing Date a signed letter from the Auditor Ernst & Young LLP addressed to the Representative Representatives and dated dated, respectively, the Effective Time, the date of this AgreementAgreement and each such Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, containing statements and information confirming that they are independent accountants within the meaning of the type ordinarily included Securities Act and the Rules and stating in accountants’ “comfort letters” to underwriters with respect to effect that:
(A) in their opinion the audited financial statements and certain financial information contained statement schedules examined by them and included in the Registration Statement Statements and the Disclosure Package, Prospectus and (ii) reported on each Closing Date, a signed letter from by them comply as to form in all material respects with the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information applicable accounting requirements of the type ordinarily included Securities Act and the Rules;
(B) they have performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in accountants’ “comfort letters” to underwriters with respect to Statement of Auditing Standards No. 71, Interim Financial Information, on the unaudited financial statements as of December 26, 1999 and certain financial information contained for the six months ended December 27, 1998 and December 26, 1999 included in the Registration Statement and the Prospectus.Statements;
(fC) On each Closing Dateon the basis of the review referred to in clause (B) above, a reading of the Representative shall have received the favorable opinion, dated as latest available interim financial statements of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as inquiries of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock officials of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall who have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (responsibility for financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.and
Appears in 1 contract
Samples: Underwriting Agreement (Cree Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the The Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) shall be true and correct when made and on and as of each Closing Date as if made on such date, except for representations and warranties that speak solely as to an earlier date, which shall be true and correct as of such earlier date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date, except for representations and warranties that speak solely as of an earlier date, which shall be true and correct as of such earlier date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained hereinherein , in each case, as required to be performed or satisfied by it at or before such Closing Date; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor RBSM LLP addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor RBSM LLP addressed to the Representative and dated the date of such Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Pxxxxx Xxxxxxxx LLP, counsel for the favorable opinionCompany, an opinion and a negative assurance letter, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to the Representative. To the extent deemed advisable by such counsel, such counsel may rely as to matters of fact on certificates of responsible officers of the Company and public officials and on the opinions of other counsel satisfactory to the Representative as to matters which are governed by laws other than the laws of the State of New York, the General Corporation Law of the State of Delaware and the Federal laws of the United States; provided that such counsel shall state that in their opinion the Underwriters and they are justified in relying on such other opinions. Copies of such certificates and other opinions shall be furnished to the Representative and counsel for the Underwriters. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the Representative and representatives of the independent certified public accountants of the Company, at which conferences the contents of the Registration Statement, the Prospectus and Issuer Free Writing Prospectuses and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Prospectus (except as specified in the foregoing opinion), and any Issuer Represented General Free Writing Prospectus on the basis of the foregoing, no facts have come to the attention of such counsel which lead such counsel to believe that (i) the Registration Statement at the time it became effective (except with respect to the financial statements and notes and schedules thereto and other financial data, 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, or that the Prospectus as amended or supplemented (except with respect to the financial statements, notes and schedules thereto and other financial data, as to which such counsel need make no statement) on the date thereof contained or as of the date hereof contains 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 (ii) any document incorporated by reference in the Statutory Prospectus and the Prospectus or any further amendment or supplement to any such incorporated document made by the Company, when they became effective or were filed with the Commission, as the case may be, contained, in the case of a registration statement which became effective under the Securities Act, any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or, in the case of other documents which were filed under the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (iii) the Statutory Prospectus, when considered together with the price to the public and the number of shares as set forth on the cover page of the Prospectus, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(g) On each Closing Date, the [reserved]
(h) The Representative shall have received on each Closing Date from Ellenoff Gxxxxxxx & Schole LLP, counsel for the favorable tax opinionRepresentative, a negative assurance statement, addressed to the Representative and dated as of such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, such documents as tax counsel they request for the Company, in form and substance reasonably satisfactory enabling them to counsel for the Underwriterspass upon such matters.
(hi) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their its counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to The Company shall have filed a Notification: Listing of Additional Shares with the execution NASDAQ Global Market and delivery of this Agreement or, if earlier, received no objection thereto.
(l) The Representative shall be reasonably satisfied that since the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, which, in the judgment of the Representative, is material and adverse and makes it impractical or inadvisable to market the Shares or proceed with the offering on the terms and in the manner contemplated by this Agreement and the General Disclosure Package, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened that had or could reasonably be expected to have a Material Adverse Effect and (v) there shall not have been any material adverse change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that is material and adverse and makes it impractical or inadvisable in to market the Representative’ judgment to Shares or proceed with the purchase or offering of on the Shares as terms and in the manner contemplated herebyby this Agreement and the General Disclosure Package.
(lm) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any no objection with respect to the fairness and reasonableness of the underwriting terms and agreements arrangements in connection with issuance and sale of the OfferingShares.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations obligation of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters Underwriter to purchase the Shares are Securities is subject to each of the following terms and conditions:
(a) Notification that each of the Registration Statement Statements has become effective shall have been received by the Representative Underwriter and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of either of the Registration Statement Statements shall be in effect and no proceedings for such purpose shall be pending before or or, to the knowledge of the Company, threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement Statements or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeUnderwriter. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement Statements pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Underwriter of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each the Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Underwriter shall have received on each the Closing Date a certificate, addressed to the Representative Underwriter and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained hereinherein required to be performed or satisfied by the Company; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement Statements and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration StatementStatements, the General Disclosure Package Statutory Prospectus or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement Statements has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Underwriter shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Underwriter and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 Statements and the General Disclosure Package, and (ii) on each the Closing Date, a signed letter from the Auditor addressed to the Representative Underwriter and dated the date of such Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative Underwriter 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 Statements and the Prospectus.
(f) On each Closing Date, the Representative The Underwriter shall have received on the favorable opinionClosing Date from Ropes & Xxxx LLP, counsel for the Company, an opinion and written statement, addressed to the Underwriter and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwritersas is set forth on Exhibit B attached hereto.
(g) On each Closing Date, the Representative The Underwriter shall have received on the favorable tax opinionClosing Date from Xxxxxxx Procter LLP, counsel for the Underwriter, an opinion and written statement, addressed to the Representative and dated as of such Closing Date, with respect to the validity of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLCthe Securities, the Registration Statements, the General Disclosure Package, the Prospectus and other related matters as tax the Underwriter reasonably may request, and such counsel for the Company, in form shall have received such papers and substance reasonably satisfactory information as they request to counsel for the Underwritersenable them to pass upon such matters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Underwriter and their counselcounsel for the Underwriter.
(i) The Representative Underwriter shall have received copies of the Lock-up Up Agreements executed by each entity or person listed on Schedule IV III hereto.
(j) The Shares and the Warrant Shares shall have been approved for listing on the NASDAQ Capital Nasdaq Global Market, subject only to official notice of issuance.
(k) Subsequent to The Underwriter shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the General Disclosure Package and the Prospectus, (i) except as set forth or contemplated by the Registration StatementStatements, the Statutory Prospectus, the General Disclosure Package or the Prospectus: (i) , there shall not have been any material change in the capital stock of the Company (other than as a result or the exercise of outstanding stock options) or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration StatementStatements, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) except as set forth or contemplated by the Registration Statements, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could would reasonably be expected to have a Material Adverse Effect, (iv) except as set forth or contemplated by the Registration Statements, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) except as set forth or contemplated by the Registration Statements, the Statutory Prospectus, the General Disclosure Package or the Prospectus, there shall not have been any material adverse change in the assets, properties, condition (financial or otherwise)condition, or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their its Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ Underwriter’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA the Company shall have confirmed that it has not raised any objection with respect furnished to the fairness and reasonableness Underwriter a Secretary’s Certificate of the underwriting terms and agreements in connection with the OfferingCompany.
(m) On the Closing Date, the Company shall have furnished to the Underwriter a Certificate of the Chief Financial Officer of the Company.
(n) The Company shall have furnished or caused to be furnished to the Representative Underwriter such further customary certificates or documents as the Representative Underwriter shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase and pay for the Shares are Notes as provided herein shall be subject to each the accuracy of the representations and warranties of the Company, as of the date hereof and the First Closing Date (as if made on the First Closing Date) and in the case of the Option Notes, as of the date hereof and the Second Closing Date (as if made on the Second Closing Date), to the performance by the Company of its obligations hereunder, and to the satisfaction of the following terms additional conditions on or before the First Closing Date in the case of the Firm Notes and conditionson or before the Second Closing Date in the case of the Option Notes:
(a) Notification that the The Registration Statement has shall have become effective not later than 5:00 P.M. Minneapolis time, on the first full business day following the date of this Agreement, or such later date as shall be consented to in writing by the Underwriters (the "Effective Date"). If the Company has elected to rely upon Rule 430A, the information concerning the price of the Notes and price-related information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been received by transmitted to the Representative SEC for filing pursuant to Rule 424(b) within the prescribed time period, and prior to the Prospectus Closing Date the Company shall have provided evidence satisfactory to the Underwriters of such timely filing (or a post-effective amendment providing such information shall have been timely promptly filed with the Commission and declared effective in accordance with Section 4(a) of this Agreement the 1933 Act and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) and Regulations). No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no stop order suspending the effectiveness thereof shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before Company or the Underwriters, threatened by the Commission, and SEC or any requests state securities commission or similar regulatory body. Any request of the SEC for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission Underwriters and their legal counsel. The NASD, upon review of the Representative. If terms of the Company has elected to rely upon Rule 430AOffering, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall not have been transmitted objected to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties terms of the Company contained in this Agreement and Underwriters' participation in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing DateOffering.
(db) The Representative Underwriters shall not have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date been advised that the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing or Prospectus, when considered together with the General Disclosure Packageor any amendment thereof or supplement thereto, included, contains any untrue statement of a material fact and did not omit or omits to state a material fact and which is required to be stated therein or is necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(ec) The Representative Underwriters and Underwriters' counsel shall have received: (i) simultaneously been furnished with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements such documents and information of as 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the ProspectusUnderwriters or their counsel may have requested.
(fd) On each Closing Date, the Representative The Underwriters shall have received the favorable opinionopinion of Andrxxx & Xurtx, X.L.P., dated as of such the Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form Date and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Underwriters and their counsel.
(i) The Representative shall have received copies of counsel and substantially in the Lock-up Agreements executed by each entity or person listed on Schedule IV form set forth in Exhibit A hereto.
(je) The Shares shall have been approved for listing on At the NASDAQ Capital Market, subject only to official notice time of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlierand also at each Closing Date, the dates as Underwriters shall have received from PricewaterhouseCoopers LLP a letter or letters, dated the date of which information is given delivery thereof, in the Registration Statementform and substance satisfactory to the Underwriters, stating that they are independent public accountants with respect to the General Disclosure Package or Company on a consolidated basis within the Prospectusmeaning of the 1933 Act and that: (i) In their opinion, the Financial Statements included in the Registration Statement and Prospectus and reported on therein by them comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and related published rules and regulations;
(ii) On the basis of a limited review (but not an examination in accordance with generally accepted auditing standards) consisting of a reading of the unaudited financial statements included in the Registration Statement and Prospectus (if any) and the latest available interim financial statements of the Company subsequent thereto; a reading of the minutes of the board of directors and shareholders of the Company subsequent thereto; and inquiries of officials of the Company and the Subsidiaries responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter and agreed upon by you, nothing has come to their attention that causes them to believe that: a) The unaudited financial statements included in the Registration Statement and Prospectus, if any, do not comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and with the published Rules and Regulations or that such financial statements are not fairly presented in conformity with generally accepted accounting principles applied on a basis consistent with that of the audited financial statements included in the Registration Statement and Prospectus; b) As of a specified date not more than five days prior to the date of this Agreement in the case of the first letter and not more than two business days prior to the date of the First Closing Date and if applicable, the Second Closing Date, in the case of the second and subsequent letters, there shall not have been any material change changes in the capital stock stock, increases in debt, decreases in contracts held for sale (net of allowance), credit enhancement assets (net of amortization) or any increase in liabilities or decreases in assets or stockholders' equity of the Company Company, in each case, as compared with amounts shown in the most recent balance sheet included in the Prospectus; and c) for the period from the date of the most recent balance sheet included therein to such specified date, there was any decrease, as compared with the corresponding period of the previous year, total revenues or any material change decrease in the indebtedness (other than net income before income taxes or net income or in the ordinary course basic or diluted per share amounts of business) of the Transaction Entitiesnet income except, (ii) except as set forth or contemplated by in each case, for such changes which the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Securities are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each the Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each the Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each the Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such the Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on the favorable opinionClosing Date from Xxxxx Lord LLP, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, an opinion, addressed to the Representative and dated the Closing Date, in the form attached to this Agreement as Exhibit B.
(g) The Representative shall have received on the Closing Date from Xxxxxx Xxxxxx, the Company’s internal intellectual property counsel, an opinion, addressed to the Representative and dated the Closing Date, in the form attached to this Agreement as Exhibit C.
(h) The Representative shall have received on the Closing Date from the General Counsel of the Company, an opinion, addressed to the Representative and dated the Closing Date, in the form attached to this Agreement as Exhibit D.
(i) The Representative shall have received on the Closing Date from Proskauer Rose LLP, counsel for the Representative, an opinion, addressed to the Representative and dated the Closing Date, which shall be reasonably satisfactory in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(hj) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(ik) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jl) The Shares and Warrant Shares shall have been approved for listing on the NASDAQ Capital MarketNew York Stock Exchange, subject only to official notice of issuance.
(km) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(ln) The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company and its subsidiaries in their respective jurisdictions of organization and their good standing in such other jurisdictions as the Representative may reasonably request, in each case in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions.
(o) The Company shall have provided a notice to BGP Inc., China National Petroleum Corporation (“BGP”) pursuant to Section 12(c) of that certain Investor Rights Agreement, dated March 25, 2010 between BGP and the Company (the “Investor Rights Agreement”), and shall have satisfied the requirements of such agreement.
(p) On the Firm Shares Closing Date, FINRA the Representative shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness received electronic copies of the underwriting terms and agreements in connection with Warrants executed by the OfferingCompany.
(mq) On the Closing Date, the Representative shall have received electronic copies of the Representative’s Warrants executed by the Company.
(r) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Securities are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed performed, in all material respects respects, all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; and (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeMaterial Adverse Effect.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Lxxxxxxxxx Xxxxxxx LLP, counsel for the favorable opinionCompany, an opinion and negative assurance statement, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the The Representative shall have received the favorable tax opinionon each Closing Date from Mxxxx, dated as of such Closing DateLxxxx, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLCCxxx, as tax Fxxxxx, Gxxxxxx and Pxxxx, P.C., intellectual property counsel for the Company, an opinion and negative assurance statement, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) [Reserved]
(i) All proceedings taken in connection with the sale of the Firm Shares Units and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto. In the event that Aegis Capital Corp., in its sole discretion, agrees to release or waive any restriction set forth in a Lock-Up Agreement for an officer or director of the Company, and provides the Company with notice of the impending release or waiver at least three (3) Business Days before the effective date of such release or waiver (which release or waiver shall be substantially in the Form found at Exhibit A-1 attached hereto), the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit A-2 attached hereto through a major news service at least two (2) Business Days before the effective date of the release or waiver.
(jk) The Shares, the Warrants and the Representative’s Warrant Shares shall have been approved for listing quotation on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance., and the Company has taken no action designed to, or likely to have the effect of, delisting the Shares, the Warrants or the Representative’s Warrant Shares, nor has the Company received any notification that the Nasdaq Capital Market is contemplating terminating such listing.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(lm) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Securities.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
(o) The Warrant Agreement duly executed by each of the Company and the Warrant Agent, substantially in the form of Exhibit B, hereto, delivered to the Representative on the Firm Units Closing Date.
(p) A Representative’s Warrant, substantially in the form of Exhibit C hereto, executed by an officer of the Company, delivered to the Representative on the Firm Units Closing Date.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations obligation of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of either of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or or, to the knowledge of the Company, threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeUnderwriter. If the Company has elected to rely upon Rule 430A430B, Rule 430A 430B information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained hereinherein required to be performed or satisfied by the Company; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement received on each Closing Date a signed letter from the Auditor addressed to the Representative and dated the date of this Agreementfor such Closing Date, in form and substance reasonably satisfactory to the Representative, 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 and Statement, the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 Package and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Ropes & Xxxx LLP, counsel for the favorable opinionCompany, an opinion letter and a negative assurance letter, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for previously agreed with the UnderwritersRepresentative.
(g) On each Closing Date, the The Representative shall have received on each Closing Date from Xxxxxxx Procter LLP, counsel for the favorable tax opinionUnderwriters, an opinion and negative assurance statement, addressed to the Representative and dated as of such Closing Date, with respect to the validity of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLCthe Shares, the Registration Statement, the General Disclosure Package, the Prospectus and other related matters as tax the Representative reasonably may request, and such counsel for the Company, in form shall have received such papers and substance reasonably satisfactory information as they request to counsel for the Underwritersenable them to pass upon such matters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counselcounsel for the Underwriters.
(i) The Representative shall have received copies of the Lock-up Up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Nasdaq Global Market, subject only to official notice of issuance.
(k) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the General Disclosure Package and the Prospectus, (i) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus: (i) , there shall not have been any material change in the capital stock of the Company (other than as a result or the exercise of outstanding stock options) or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could would reasonably be expected to have a Material Adverse Effect, (iv) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole Material Adverse Effect that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares each Closing Date, FINRA the Company shall have confirmed that it has not raised any objection with respect furnished to the fairness Representative a Secretary’s Certificate attaching true and reasonableness complete copies of the underwriting terms resolutions adopted by the Board of Directors of the Company or the Pricing Committee of the Board of Directors of the Company relating to the issuance, offering and agreements in connection with sale of the OfferingShares, the Certificate of Incorporation of the Company and the By-Laws of the Company; and certifying the due appointment of any of the Company’s officers to execute this Agreement and other documents or certificates to be delivered to the Representative.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents customarily furnished in similar offering transactions as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of ------------------------------------------- the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification from the Commission that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a7(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.Representatives.
(c) The representations and warranties of the Company Company, the U.S. Subsidiary and the Selling Shareholders contained in this Agreement and in the certificates delivered pursuant to Section 3(d6(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company and the Selling Shareholders shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: that (i) the representationssigners of such certificate have carefully examined the Registration Statement, the Prospectus and this Agreement and that the representations and warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct on and as of such Closing Date; (ii) Date with the same effect as if made on such Closing Date and the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact this Agreement required to be stated therein performed or necessary satisfied by it at or prior to make the statements therein, in light of the circumstances under which they were made, not misleadingsuch Closing Date, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (ivii) no stop order suspending the effectiveness of the Registration Statement has been issued and, to the best of their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received on the Option Shares Closing Date a certificate, addressed to the Representatives and dated such Closing Date, of each Selling Shareholder, to the effect that such Selling Shareholder has carefully examined the Registration Statement, the Prospectus and this Agreement and that the representations and warranties of the Selling Shareholder in this Agreement are true and correct on and as of such Closing Date with the same effect as if made on such Closing Date and the Selling Shareholder has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(f) The Representatives shall have received: (i) simultaneously with , at the execution of time this Agreement is executed and on each Closing Date a signed letter from the Auditor Xxxxxxxxx & Xxxxxxxxx, a member firm of PricewaterhouseCoopers International Limited, addressed to the Representative Representatives and dated dated, respectively, the date of this AgreementAgreement and each such Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, containing statements and information confirming that they are independent accountants within the meaning of the type ordinarily included Securities Act and the Rules, that the response to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in accountants’ “comfort letters” to underwriters with respect to effect that:
(i) in their opinion the audited financial statements and certain financial information contained statement schedules included or incorporated by reference in the Registration Statement and the Disclosure Package, Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Rules;
(ii) on each Closing Date, the basis of a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information reading of the type ordinarily amounts included in accountants’ “comfort letters” to underwriters the Registration Statement and the Prospectus under the headings "Summary Consolidated Financial Data" and "Selected Consolidated Financial Data," carrying out certain procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter, a reading of the minutes of the meetings of the stockholders and directors of the Company, and inquiries of certain officials of the Company who have responsibility for financial statements and certain accounting matters of the Company as to transactions and events subsequent to the date of the latest audited financial information contained statements, except as disclosed in the Registration Statement and the Prospectus., nothing came to their attention which caused them to believe that:
(fA) On each Closing Date, the Representative shall have received amounts in "Summary Consolidated Financial Data," and "Selected Consolidated Financial Data" included in the favorable opinion, dated as of Registration Statement and the Prospectus do not agree with the corresponding amounts in the audited and unaudited financial statements from which such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel amounts were derived; or
(B) with respect to the Company, there were, at a specified date not more than three business days prior to the date of the letter, any increases in form the current liabilities and substance reasonably satisfactory to counsel long-term liabilities of the Company or any decreases in net income or in working capital or the stockholders' equity in the Company, as compared with the amounts shown on the Company's audited balance sheet for the Underwritersfiscal year ended 1999 and the three months ended March 31, 1999 included in the Registration Statement;
(iii) they have performed certain other procedures as may be permitted under Generally Acceptable Auditing Standards as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement and the Prospectus and reasonably specified by the Representatives agrees with the accounting records of the Company; and
(iv) based upon the procedures set forth in clauses (ii) and (iii) above and a reading of the amounts included in the Registration Statement under the headings "Summary Consolidated Financial Data" and "Selected Consolidated Financial Data" included in the Registration Statement and Prospectus and a reading of the financial statements from which certain of such data were derived, nothing has come to their attention that gives them reason to believe that the "Summary Consolidated Financial and Other Data" and "Selected Consolidated Financial Data" included in the Registration Statement and Prospectus do not comply as to the form in all material respects with the applicable accounting requirements of the Securities Act and the Rules or that the information set forth therein is not fairly stated in relation to the financial statements included in the Registration Statement or Prospectus from which certain of such data were derived are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement and Prospectus. References to the Registration Statement and the Prospectus in this paragraph (f) are to such documents as amended and supplemented at the date of the letter.
(g) On each Closing Date, the Representative The Representatives shall have received the favorable tax opinionon each Closing Date from Xxxxxx & Bird, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in an opinion, addressed to the Representatives and dated such Closing Date, the form and substance reasonably satisfactory to of which is attached as Exhibit A. ---------
(h) The Representatives shall have received on each Closing Date from Xxxxx Xxxxx-Xxxxx Xxxxx, Law Offices, Israeli counsel for the Underwriters.Company, an opinion, addressed to the Representatives and dated such Closing Date, the form of which is attached as Exhibit B. ---------
(hi) [Intentionally Omitted]
(j) The Representatives shall have received on the Option Shares Closing Date from Xxxxx Xxxxx-Xxxxx Xxxxx, Law Offices, counsel for the Selling Shareholders, an opinion, addressed to the Representatives and dated such Closing Date, the form of which is attached as Exhibit C. ---------
(k) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives, and their counselcounsel and the Underwriters shall have received from Ropes & Xxxx, counsel to the Underwriters, a favorable opinion, addressed to the Representatives and dated such Closing Date, with respect to the Registration Statement and the Prospectus, and such other related matters, as the Representatives may reasonably request, and the Company shall have furnished to Ropes & Xxxx such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(il) The Representative Representatives shall have received from Xxxxx Xxxxx & Co., Israeli counsel to the Underwriters, a favorable opinion addressed to the Representatives and dated such Closing Date, with respect to the validity of the Shares.
(m) The Representatives shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV heretodescribed in Section 4(p).
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(mn) The Company and the Selling Shareholders shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Securities are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each the Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each the Closing Date a certificate, addressed to the Representative and dated such the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company Company, in their capacity as such officers, to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such the Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeMaterial Adverse Effect.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each the Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such the Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on the favorable opinionClosing Date from Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C., U.S. counsel for the Company, an opinion and negative assurance statement, addressed to the Representative and dated as of such the Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the The Representative shall have received on the favorable tax opinionClosing Date from Meitar Law Offices, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax Israeli counsel for the Company, an opinion and negative assurance statement, addressed to the Representative and dated the Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) All proceedings taken in connection with The Representative shall have received on the sale of Closing Date from Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel for the Firm Shares Depositary, an opinion, addressed to the Representative and dated the Option Shares as herein contemplated shall be reasonably satisfactory Closing Date, in form and substance reasonably satisfactory to the Representative and their counselRepresentative.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital MarketClosing Date from Xxxx, subject only to official notice of issuance.
(k) Subsequent xx Xxxxx, Xxxxxxx & Co., intellectual property counsel for the Company, an opinion and written negative assurance statement, addressed to the execution Representative and delivery of this Agreement or, if earlier, dated the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect in form and substance reasonably satisfactory to the fairness and reasonableness of the underwriting terms and agreements in connection with the OfferingRepresentative.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Samples: Underwriting Agreement (Chemomab Therapeutics Ltd.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become became effective on the Effective Date shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) otherwise shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430A. If the Company has elected to rely upon Rule 434, a term sheet shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, representations and warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained hereinherein required to be performed or satisfied by it at or prior to the Closing Date; (iii) they have carefully examined the Registration Statement, Statement and the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not includenot, and as of its date, the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, Prospectus did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the Prospectus; and (iv) to their knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, and no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with , at the execution of time this Agreement is executed and on each Closing Date a signed letter from the Auditor addressed to the Representative Representatives and dated dated, respectively, the date of this AgreementAgreement and each such Closing Date, in form and substance reasonably satisfactory to the Representative, Representatives 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the Representative The Representatives shall have received the favorable opinionon each Closing Date from Cooley Godward LLP, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to for the Company, an opinion, addressed to the Representatives and dated such Closing Date containing the opinions substantially as set forth in form and substance reasonably satisfactory to counsel for the UnderwritersExhibit B attached hereto.
(g) On each Closing Date, the Representative The Representatives shall have received on each Closing Date from Hyman, Phelps & McNamera, P.C., special counsel for the favorable tax Company with rexxxxx to Xxxxxx Xtates Food and Drug Administration ("FDA") regulatory matters, an opinion, addressed to the Representatives and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, containing the opinions substantially as tax counsel for the Company, set forth in form and substance reasonably satisfactory to counsel for the UnderwritersExhibit C attached hereto.
(h) The Representatives shall have received on each Closing Date from Townsend and Townsend and Crew LLP and Millen, White, Zelano & Bxxxxxxx, P.C., xxxxxxectual property counsel for the Cxxxxxx, opinionx, addressed to the Representatives and dated such Closing Date, containing the opinions substantially as set forth in Exhibits D and E, respectively, attached hereto.
(i) The Representatives shall have received on each Closing Date from Latham & Watkins LLP, counsel for the Representatives, an opinion, xxxresxxx xx the Representatives and dated such Closing Date, containing the opinions substantially as set forth in Exhibit F attached hereto.
(j) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives with respect to the Shares, the Registration Statement and their counselthe Prospectus, and such other related matters, as the Representatives may reasonably request, and the Company shall have furnished to Underwriters counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(ik) The Representative Representatives shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jl) The Shares shall have been approved for listing quotation on the NASDAQ Capital Nasdaq National Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a6(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430A. If the Company has elected to rely upon Rule 434, a term sheet shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d5(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: that (i) the representationssigners of such certificate have carefully examined the Registration Statement, the Prospectus and this Agreement and that the representations and warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct on and as of such Closing Date; (ii) Date with the same effect as if made on such Closing Date and the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact this Agreement required to be stated therein performed or necessary satisfied by it at or prior to make the statements therein, in light of the circumstances under which they were made, not misleadingsuch Closing Date, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (ivii) no stop order suspending the effectiveness of the Registration Statement has been issued and, and to the best of their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with , at the execution of time this Agreement is executed and on each Closing Date a signed letter from the Auditor KPMG LLP addressed to the Representative Representatives and dated dated, respectively, the date of this AgreementAgreement and each such Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, containing statements and information confirming that they are independent accountants within the meaning of the type ordinarily included Securities Act and the Rules, that the response to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in accountants’ “comfort letters” to underwriters with respect to effect that:
(i) In their opinion the audited financial statements and certain financial information contained statement schedules included or incorporated by reference in the Registration Statement and the Disclosure Package, Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Rules.
(ii) On the basis of a reading of the amounts included in the Registration Statement and the Prospectus under the headings "Summary Financial Information" and "Selected Financial Data," carrying out certain procedures (but not an examination in accordance with United States generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter, a reading of the minutes of the meetings of the stockholders and directors of the Company, and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company as to transactions and events subsequent to the date of the latest audited financial statements, except as disclosed in the Registration Statement and the Prospectus, nothing came to their attention which caused them to believe that:
(A) the amounts in "Summary Financial Information," and "Selected Financial Data" included in the Registration Statement and the Prospectus do not agree with the corresponding amounts in the audited and unaudited financial statements from which such amounts were derived; or
(B) with respect to the Company, there were, at a specified date not more than three business days prior to the date of the letter, any increases in the current liabilities and long-term liabilities of the Company or any increases in net loss or decreases in net assets or in working capital or the stockholders' equity in the Company, as compared with the amounts shown on the Company's audited balance sheet for the fiscal year ended December 31, 1999 and the six months ended June 30, 2000 included in the Registration Statement.
(iii) They have performed certain other procedures as may be permitted under United States generally acceptable auditing standards as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement and the Prospectus and reasonably specified by the Representatives agrees with the accounting records of the Company.
(iv) Based upon the procedures set forth in clauses (ii) and (iii) above and a reading of the amounts included in the Registration Statement under the headings "Summary Financial Information" and "Selected Financial Data" included in the Registration Statement and Prospectus and a reading of the financial statements from which certain of such data were derived, nothing has come to their attention that gives them reason to believe that the "Summary Financial Information" and "Selected Financial Data" included in the Registration Statement and Prospectus do not comply as to the form in all material respects with the applicable accounting requirements of the Securities Act and the Rules or that the information set forth therein is not fairly stated in relation to the financial statements included in the Registration Statement or Prospectus from which certain of such data were derived are not in conformity with United States generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement and Prospectus. References to the Registration Statement and the Prospectus in this paragraph (e) are to such documents as amended and supplemented at the date of the letter.
(f) The Representatives shall have received on each Closing DateDate from Xxxxxx Godward LLP, a signed letter from counsel for the Auditor Company, an opinion, addressed to the Representative Representatives and dated the date of such Closing Date(s)Date, in form and substance reasonably satisfactory to counsel for the Representative containing statements Underwriters, and information stating in effect that:
(i) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the type ordinarily included State of Delaware. The Company is duly qualified to transact business as a foreign corporation and is in accountants’ “comfort letters” good standing in California, and to underwriters with respect such counsel's knowledge, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its businesses makes such qualification necessary, except for such jurisdictions where the failure to so qualify, individually or in the aggregate, would not have a Material Adverse Effect.
(ii) The Company has the requisite corporate power and authority to own and lease its assets and properties and conduct its business as now being conducted and as described in the Registration Statement and the Prospectus and to enter into, deliver and perform this Agreement and to issue and sell the Shares other than those required under the state and foreign securities and Blue Sky laws (as to which such counsel need express no opinion).
(iii) The Company has authorized and issued (as of the date indicated) capital stock as set forth in the Registration Statement and the Prospectus under the captions "Capitalization" and "Description of Capital Stock"; the certificates evidencing the Shares are in due and proper legal form and the Shares have been duly authorized for issuance by the Company. The Shares when issued and sold for the stated consideration pursuant to this Agreement will be duly and validly issued, outstanding, fully paid and nonassessable and none of them will have been issued in violation of any preemptive or other similar right pursuant to the financial statements certificate of incorporation or bylaws of the Company or applicable statute or under any agreement known to us. To such counsel's knowledge, except as disclosed in the Registration Statement and certain financial information the Prospectus, there are no preemptive or other rights to subscribe for or to purchase or any restriction upon the voting or transfer of any securities of the Company pursuant to the Company's Certificate of Incorporation, as amended, or bylaws or other governing documents or any agreements or other instruments to which the Company is a party or by which it is bound. Except as disclosed in the Registration Statement and the Prospectus, to such counsel's knowledge as of the date indicated in the Registration Statement and the Prospectus, there was no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue, any share of stock of the Company or any security convertible into, exercisable for, or exchangeable for stock of the Company. The Common Stock and the Shares conform in all material respects to the descriptions thereof contained in the Registration Statement and the Prospectus.
(fiv) On each Closing DateThis Agreement has been duly and validly authorized, the Representative shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to executed and delivered by the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(gv) On each Closing DateNeither the execution, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form delivery and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery performance of this Agreement orby the Company nor the consummation of any of the transactions contemplated hereby (including, if earlierwithout limitation, the dates issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or any event which with notice or lapse of time, or both, would constitute a default) under, or require consent or waiver under, or result in the execution or imposition of any lien, charge, claim, security interest or encumbrance upon any properties or assets of the Company pursuant to the terms of any Material Agreement, or (a) violate any judgment, decree or order known to such counsel or (b) conflict with or violate any statute, rule or regulation applicable to the Company or (c) violate any provision of the Certificate of Incorporation, as amended, or bylaws of which information is given the Company. For purposes of this opinion, "Material Agreement" shall mean any agreement or other document filed (including through incorporation by reference) as an exhibit to the Registration Statement or any document incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Xxxxx Day, counsel for the favorable opinionCompany, an opinion and negative assurance letter, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the The Representative shall have received the favorable tax opinionon each Closing Date from Silicon Valley Patent Group LLP, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax intellectual property counsel for the Company, an opinion, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) The Representative shall have received on each Closing Date from White & Case LLP, counsel for the Representative, an opinion and negative assurance letter, addressed to the Representative and dated such Closing Date, which shall be reasonably satisfactory in form and substance to the Representative.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jk) The Shares shall have been approved for listing quotation on the NASDAQ Capital Nasdaq Global Market, subject only to official notice of issuance.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) The Representative shall have received on and as of (i) the date hereof and (ii) each Closing Date, a certificate of the chief financial officer of the Company confirming certain financial information included in the General Disclosure Package and the Prospectus, in form and substance reasonably satisfactory to the Representative.
(o) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents (including a Secretary’s Certificate) as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A430B, Rule 430A 430B information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date, except for representations and warranties that speak solely as to an earlier date, which shall be true and correct as of such earlier date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date, except for representations and warranties that speak solely as of an earlier date, which shall be true and correct as of such earlier date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, counsel for the favorable Company, an opinion, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Hxxxxx Xxxxxxx & Exxxx LLP shall have furnished to the Underwriters such counsel’s written opinion, as intellectual property counsel to the Company, addressed to the Representative and dated the Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Companyapplicable, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) The Representative shall have received on the Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Representative, an opinion, addressed to the Representative and dated such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of such documents as they request for enabling them to pass upon such matters.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their its counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jk) The Shares shall have been approved for listing on the The NASDAQ Capital Market, subject only to official notice of issuance.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any no objection with respect to the fairness and reasonableness of the underwriting terms and agreements arrangements in connection with the Offeringissuance and sale of the Shares.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Samples: Underwriting Agreement (Vuzix Corp)
Conditions of the Underwriters’ Obligations. The obligations obligation of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification Verbal notification from the Company that the Registration Statement has become became effective on the Effective Date shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus,” as defined in Rule 405 of the Rules, shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeUnderwriter. If the Company has elected to rely upon Rule 430A430B, Rule 430A 430B information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence reasonably satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) shall be true and correct when made and on and as of each Closing Date as if made on such dateClosing Date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such each Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to , certifying solely in their capacities as officers of the effect Company on behalf of the Company, that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus Prospectuses and, in their opinion (A) as of the date of this Agreement, which is the most recent Effective Date of the Registration Statement, the Registration Statement did not and as of its date, the Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Applicable Time no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the ProspectusProspectus that has not been so disclosed; and (iv) to their knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, and no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: , (i) simultaneously with the execution of this Agreement a signed letter from the Auditor KPMG LLP addressed to the Representative Representatives and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, 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 and the Disclosure PackageStatutory Prospectus, and (ii) on each Closing Date, a signed letter from the Auditor KPMG LLP addressed to the Representative Representatives and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives 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 and the Prospectus.
(f) On each Closing Date, the Representative The Representatives shall have received the favorable opinionon each Closing Date from Xxxxxx LLP, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to for the Company, an opinion and a negative assurance letter, each addressed to the Representatives and dated such Closing Date (with appropriate modifications for any opinion or negative assurance letter delivered on any subsequent Closing Date), in form substantially the forms attached hereto as Exhibit B-1 and substance reasonably satisfactory to counsel for the UnderwritersExhibit B-2, respectively.
(g) On each Closing Date, the Representative The Representatives shall have received the favorable tax opinionon each Closing Date from each of Global Patent Group, dated as of such Closing DateLLC and Fish & Xxxxxxxxxx LLP, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax special intellectual property counsel for the Company, an opinion, addressed to the Representatives and dated such Closing Date, in form and substance reasonably satisfactory to substantially the forms attached hereto as Exhibit C.
(h) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters.
(h) All proceedings taken , an opinion addressed to the Representatives and dated such Closing Date, covering such matters as are customarily covered in transactions of this type, provided that the Representatives have requested such opinion, and the Company shall have furnished to Xxxxxx & Xxxxxxx LLP such documents as they may reasonably request for the purpose of enabling them to pass upon such matters, with such documents being limited to those that are similar in substance to the documents delivered to Xxxxxx & Xxxxxxx LLP in connection with prior securities offerings by the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their Company where Xxxxxx & Xxxxxxx LLP was underwriters’ counsel.
(i) The Representative Representatives shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Nasdaq Global Select Market, subject only to official notice of issuance, and the Company shall not have received any notice that it is not in compliance with the listing or maintenance requirements of Nasdaq.
(k) Subsequent to The Representatives shall have received as of the execution and delivery date of this Agreement orand on each Closing Date a certificate, if earlieraddressed to the Representatives and dated such Closing Date, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) chief financial officer of the Transaction EntitiesCompany, (ii) except in substantially the form attached hereto as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.Exhibit D.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested, with such requested certificates and documents being limited to those that are similar in substance to the certificates and documents delivered in connection with prior underwritten public offerings by the Company.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Securities under this Agreement are subject to the satisfaction of each of the following terms and conditions:
(a) Notification that All the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when on the date hereof and on the Closing Date, with the same force and effect as if made and on and as of each the date hereof and the Closing Date as if made on such dateDate, respectively. The Company shall have performed in or complied with all material respects all covenants and of the agreements and satisfied all the conditions contained in this Agreement required to be performed performed, complied with or satisfied by it at on or before such prior to the Closing Date.
(db) The Representative Registration Statement shall have received become effective not later than 5:00 p.m. (and in the case of a Registration Statement filed under Rule 462(b) of the Act, not later than 10:00 p.m.), Eastern Standard Time, on each the date of this Agreement or at such later date and time as you may approve in writing, and at the Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has shall have been issued and, to their knowledge, and no proceedings for that purpose shall have been instituted commenced or are shall be pending under before or contemplated by the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeCommission.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(kc) Subsequent to the execution and delivery of this Agreement orand prior to the Closing Date, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material 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 capital stock rating accorded any of the Company or Company's securities by any material change in "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the indebtedness Act.
(other than in the ordinary course of businessd) of the Transaction Entities, (iii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction The Prospectus shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) printed and copies distributed to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse EffectUnderwriters not later than 9:00 a.m., (iv) no legal or governmental actionEastern Standard Time, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assetson ________________, properties, condition (financial or otherwise)1996, or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness at such later date and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents time as the Representative shall have reasonably requested.Underwriters may approve in writing; and
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by each of the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a4(a)(i) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company Company, in such capacity, to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Representatives and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed bringdown letter from the Auditor addressed to the Representative Representatives and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives 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 and the Prospectus.
(f) On each Closing Date, the Representative The Representatives shall have received on each Closing Date from K&L Gates LLP, counsel for the favorable opinionCompany, an opinion and negative assurance letter, addressed to the Representatives and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwritersas is set forth on Exhibit B attached hereto.
(g) On each Closing Date, the Representative The Representatives shall have received the favorable tax opinionon each Closing Date from Dentons, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax intellectual property counsel for the Company, an opinion and written statement, addressed to the Representatives and dated such Closing Date, in form and substance reasonably satisfactory to counsel for the Underwritersas is set forth on Exhibit C attached hereto.
(h) The Representatives shall have received on each Closing Date from Lxxxxxxxxx Xxxxxxx LLP, counsel for the Representatives , an opinion and negative assurance letter, in form and substance as is set forth on Exhibit D attached hereto.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives , and their its counsel.
(ij) The Representative Representatives shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV III hereto.
(jk) The Shares shall have been approved for listing on the NASDAQ Capital MarketNasdaq, subject only to official notice of issuance.
(kl) Subsequent to The Representatives shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could would reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could would reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that materially affects or could would reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole Company that makes it impractical or inadvisable in the RepresentativeRepresentatives’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) Each of the Representatives shall have received on each Closing Date a Secretary’s Certificate of the Company.
(o) The Company shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus shall have been or shall be in effect and effect, no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430A. If the Company has elected to rely upon Rule 434, a term sheet shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period.
(c) The Representative shall be reasonably satisfied that: (i) the representations and warranties of the Company and the Selling Stockholders contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) shall be be, (x) if qualified as to materiality, true and correct and (y) in all other cases, true and correct in all material respects, when made and on and as of each Closing Date as if made on such date; (ii) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Prospectus that has not been set forth in an effective supplement or amendment; and (iii) since the respective dates as of which information is given in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein, there has not been any material adverse change or any development involving a prospective material adverse change in the business, properties, financial condition or results of operations of the Company and its subsidiaries, and since such dates, neither the Company nor any of its subsidiaries has entered into any material transaction not referred to in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date and the Selling Stockholders shall have, in all material respects, performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated as of such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct in all material respects when made and are true and correct in all material respects as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have each carefully examined the Registration Statement, Statement and the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement received on each Closing Date a signed letter from the Auditor certificate addressed to the Representative and dated as of such Closing Date, of each Selling Stockholder, to the date effect that: (i) the representations, warranties and agreements of each Selling Stockholder in this Agreement were true and correct in all material respects when made and are true and correct in all material respects as of such Closing Date; (ii) each Selling Stockholder has performed all covenants and agreements and satisfied all conditions contained herein; and (iii) each Selling Stockholder has carefully examined the Registration Statement and the Prospectus and, in the opinion of such Selling Stockholder, (A) with respect to the information relating to such Selling Stockholder, as of the Effective Date, the Registration Statement and Prospectus did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 with respect to such Selling Stockholder which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement or the Prospectus.
(f) The Representative shall have received a certificate on each Closing Date signed by the Secretary of the Company to the effect that, as of the Closing Date, the Secretary certifies as to the accuracy of the Company's charter and bylaws, the resolutions of the Board of Directors relating to the offering contemplated hereby, the form of stock certificate representing the Shares and copies of all communications with the Commission; as to the execution and delivery of this Agreement; as to the incumbency and signature of persons signing this Agreement, the Registration Statement and other related documents; as to the approval of the Shares for listing on the Nasdaq National Market; as to the Company's compliance with all agreements and performance or satisfaction of all conditions required hereunder; as to the consideration received for all outstanding shares of the Company's Common Stock; and as to such other matters as Underwriters' counsel may reasonably request.
(g) The Representative shall have been furnished evidence in the usual written or electronic form and substance reasonably from the appropriate authorities of the several jurisdictions, or other evidence satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to good standing and qualifications of the financial statements Company.
(h) The Representative shall have received, at the time this Agreement is executed and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, Date a signed letter from the Auditor Ernst & Young addressed to the Representative and dated dated, respectively, the date of this Agreement and each such Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(fi) On each Closing Date, the The Representative shall have received a copy of a letter from Ernst & Young addressed to the favorable Company, stating that their review of the Company's internal accounting controls, to the extent they deemed necessary in establishing the scope of their examination of the Company's financial statements filed with the Registration Statement and the Prospectus, did not disclose any weakness in internal controls that they considered to be material weaknesses.
(j) The Representative shall have received on each Closing Date from Bingham McCutchen LLP, counsel for the Company, an opinion, addressed xx xxx Xxxxesentative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, substantially in the form attached hereto as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.Exhibit D.
(gk) On each Closing Date, the The Representative shall have received on each Closing Date from Preti Flaherty Beliveau Pachios & Haley LLP, counsel for the favorable tax opinionCompany axx xxx Xxxxxxx Xxockholders, xx xpinion, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, substantially in the form attached hereto as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.Exhibit E.
(hl) All proceedings taken in connection with The legality and sufficiency of the sale of the Firm Shares hereunder and the Option Shares validity and form of the certificates representing the Shares, all corporate proceedings and other legal matters incident to the foregoing, and the form of the Registration and of the Prospectus (except as herein contemplated to the financial statements and financial information contained therein) shall be reasonably satisfactory in form and substance have been approved at or prior to the Closing Date by Morrison & Foerster LLP, counsel for the underwriters. The Reprexxxxxxxxe sxxxx xxxe received on each Closing Date from Morrison & Foerster an opinion, addressed to the Representative xxx xxxxd ax xx xxxh Closing Date, with respect to the issuance and their counselsale of the Shares, the Registration Statement and the Prospectus and such other related matters as the Underwriters reasonably may request and such counsel shall have received such documents and other information as they request to enable them to pass upon such matters.
(im) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV III hereto.
(jn) The Shares shall have been approved for listing quotation on the NASDAQ Capital Nasdaq National Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(mo) The Company and each Selling Stockholder shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus "free writing prospectus", as defined in Rule 405 of the Rules, shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company in their representative capacities to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained hereinherein required to be performed or satisfied by it at or prior to the Closing Date; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: , (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Representatives and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, 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 and the Disclosure PackageStatutory Prospectus, and (ii) on each such Closing Date, a signed letter from the Auditor addressed to the Representative Representatives and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives 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 Statement, and the Prospectus.
(f) On each Closing Date, the Representative The Representatives shall have received on each Closing Date from DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP, counsel for the favorable Company, an opinion, addressed to the Representatives and dated as of such Closing Date, containing the opinions substantially as set forth in EXHIBIT B attached hereto. To the extent deemed advisable by such counsel, such counsel may rely as to matters of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as fact on certificates of responsible officers of the Company and public officials and on the opinions of other counsel satisfactory to the CompanyRepresentatives as to matters which are governed by laws other than the laws of the State of New York, the General Corporation Law of the State of Delaware and the federal laws of the United States; provided that such counsel shall state that in form their opinion the Underwriters and substance reasonably satisfactory they are justified in relying on such other opinions. Copies of such certificates and other opinions shall be furnished to counsel for the UnderwritersRepresentatives.
(g) On each Closing Date, the Representative The Representatives shall have received on each Closing Date from Xxxxxx Xxxxxx LLP, special counsel for the favorable tax Company with respect to FDA regulatory matters, an opinion, addressed to the Representatives and dated as of such Closing Date, containing the opinions substantially as set forth in EXHIBIT C attached hereto. To the extent deemed advisable by such counsel, such counsel may rely as to matters of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax fact on certificates of responsible officers of the Company and public officials and on the opinions of other counsel for the Company, in form and substance reasonably satisfactory to the Representatives as to matters which are governed by laws other than the laws of the State of New York, the General Corporation Law of the State of Delaware and the federal laws of the United States; provided that such counsel for shall state that in their opinion the UnderwritersUnderwriters and they are justified in relying on such other opinions. Copies of such certificates and other opinions shall be furnished to the Representatives.
(h) The Representatives shall have received on each Closing Date from the Law Office Of Xxxx X. Xxxxxxxx, P.C., special counsel for the Company with respect to trademark matters, an opinion, addressed to the Representatives and dated such Closing Date, containing the opinions substantially as set forth in EXHIBIT D attached hereto. To the extent deemed advisable by such counsel, such counsel may rely as to matters of fact on certificates of responsible officers of the Company and public officials and on the opinions of other counsel satisfactory to the Representatives as to matters which are governed by laws other than the laws of the State of New York, the General Corporation Law of the State of Delaware and the federal laws of the United States; provided that such counsel shall state that in their opinion the Underwriters and they are justified in relying on such other opinions. Copies of such certificates and other opinions shall be furnished to the Representatives.
(i) The Representatives shall have received on each Closing Date from Xxxxxx Godward LLP, counsel for the Representatives, an opinion, addressed to the Representatives and dated such Closing Date, containing the opinions substantially as set forth in EXHIBIT E attached hereto. To the extent deemed advisable by such counsel, such counsel may rely as to matters of fact on certificates of responsible officers of the Company and public officials and on the opinions of other counsel satisfactory to the Representatives as to matters which are governed by laws other than the laws of the State of New York, the General Corporation Law of the State of Delaware and the federal laws of the United States; provided that such counsel shall state that in their opinion the Underwriters and they are justified in relying on such other opinions. Copies of such certificates and other opinions shall be furnished to the Representatives.
(j) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives with respect to the Shares, the Registration Statement and their counselthe Prospectus, and such other related matters, as the Representatives may reasonably request, and the Company shall have furnished to Underwriters counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(ik) The Representative Representatives shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV SCHEDULE II hereto.
(jl) The Shares shall have been approved for listing quotation on the NASDAQ Capital National Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus Prospectus, shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company in such capacity to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries, considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed bring-down letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Dxxxx Xxxx & Wxxxxxxx LLP, U.S. counsel for the favorable opinionCompany, an opinion and negative assurance statement, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the The Representative shall have received the favorable tax opinionon each Closing Date from Hxxxxx Fox & Nxxxxx, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax Israeli counsel for the Company, an opinion, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) The Representative shall have received on each Closing Date from Exxxxx & Fenster, intellectual property counsel for the Company, an opinion and written negative assurances statement, addressed to the Representative and dated such Closing Date, in form and substance satisfactory to the Representative.
(i) The Representative shall have received on the Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., as U.S. counsel for the Representative, a negative assurance statement, addressed to the Representative and dated as of such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of such documents as they request for enabling them to pass upon such matters.
(j) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(ik) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto. In the event that Oxxxxxxxxxx & Co. Inc., in its sole discretion, agrees to release or waive any restriction set forth in a Lock-Up Agreement for an officer or director of the Company, and provides the Company with notice of the impending release or waiver at least three business days before the effective date of such release or waiver (which release or waiver shall be substantially in the Form found at Exhibit A-1 hereto), the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit A-2 hereto through a major news service at least two business days before the effective date of the release or waiver.
(jl) The Shares shall have been approved for listing quotation on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance.
(km) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could would reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could would reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could would reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (condition, financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries, considered as a whole whole, that makes it impractical or inadvisable in the Representative’ 's judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(ln) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mo) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a6(a)(i) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.Representatives.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates certificate delivered pursuant to Section 3(d5(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.or
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: that (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, Prospectus and this Agreement and that the General Disclosure Package, representations and any individual Issuer Free Writing Prospectus and, in their opinion (A) as warranties of the Effective Date the Registration Statement Company in this Agreement are true and Prospectus did not include, correct on and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together such Closing Date with the General Disclosure Package, included, any untrue statement of a material fact same effect as if made on such Closing Date and did not omit to state a material fact the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be stated therein performed or necessary satisfied by it at or prior to make the statements therein, in light of the circumstances under which they were made, not misleadingsuch Closing Date, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (ivii) no stop order suspending the effectiveness of the Registration Statement has been issued and, and to the best of their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with received at the execution of time this Agreement is executed and on each Closing Date a signed letter from the Auditor Ernst & Young LLP addressed to the Representative Representatives and dated dated, respectively, the date of this AgreementAgreement and each such Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, containing confirming that they are independent accountants within the meaning of the Securities Act and the Rules, that the response to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) in their opinion the audited financial statements and information financial statement schedules included in the Registration Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the type ordinarily Securities Act and the Rules;
(ii) on the basis of a reading of the amounts included in accountants’ “comfort letters” to underwriters the Registration Statement and the Prospectus under the headings "Prospectus Summary Summary Financial Data" and "Selected Financial Data," carrying out other procedures which do not constitute an audit conducted in accordance with generally accepted auditing standards and would not necessarily reveal matters of significance with respect to the comments set forth in such letter, a reading of the minutes of the meetings of the stockholders and directors of the Company, and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company as to transactions and events subsequent to the date of the latest audited financial statements, except as disclosed in the Registration Statement and the Prospectus, nothing came to their attention which caused them to believe that:
(A) the amounts in "Prospectus Summary - Summary Financial Data," and "Selected Financial Data" included in the Registration Statement and the Prospectus do not agree with the corresponding amounts in the audited and unaudited financial statements from which
(B) with respect to the Company, there were, at a specified date not more than five business days prior to the date of the letter, any increases in the current liabilities and long-term liabilities of the Company or any decreases in net income or in working capital or the stockholders' equity in the Company, as compared with the amounts shown on the Company's audited balance sheet for the year ended December 31, 1998 and the unaudited balance sheet for the three months ended March 31, 1999 included in the Registration Statement;
(iii) they have performed certain other procedures as may be permitted under Generally Acceptable Auditing Standards as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement and the Prospectus and reasonably specified by the Representatives agrees with the accounting records of the Company; and
(iv) based upon the procedures set forth in clauses (ii) and (iii) above and a reading of the amounts included in the Registration Statement under the headings "Prospectus Summary - Summary Financial Data" and "Selected Financial Data" included in the Registration Statement and Prospectus and a reading of the financial statements from which certain of such data were derived, nothing has come to their attention that gives them reason to believe that the "Prospectus Summary Summary Financial Data" and "Selected Financial Data" included in the Registration Statement and Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Rules or that the information set forth therein is not fairly stated in relation to the financial statements included in the Registration Statement or Prospectus from which certain of such data were derived and is not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement and Prospectus. References to the Registration Statement and the Prospectus in this paragraph (e) are to such documents as amended and supplemented at the date of the letter.
(f) The Representatives shall have received on each Closing Date from Snelx & Xilmxx X.X.P., counsel for the Company, an opinion, addressed to the Representatives and dated such Closing Date, and stating in effect that:
(i) The Company and each of Midland Receivables 98-1 Corporation, a Delaware corporation, and Midland Funding 98-A Corporation, a Delaware corporation (collectively, the "Delaware Subsidiaries"), has been duly organized
(ii) Each of the Company and the Delaware Subsidiaries has all requisite corporate power and authority to own, lease and license its assets and properties and conduct its business as now being conducted and as described in the Registration Statement and the Prospectus and, with respect to the Company, to enter into, deliver and perform this Agreement and to issue and sell the Shares.
(iii) The Company has authorized and issued capital stock as set forth in the Registration Statement and the Prospectus under the caption "Capitalization"; the certificates evidencing the Shares are in due and proper legal form and have been duly authorized for issuance by the Company; all of the outstanding shares of Common Stock of the Company have been duly and validly authorized and issued and are fully paid and nonassessable and, to our knowledge, none of them was issued in violation of any preemptive or other similar right. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, outstanding, fully paid and nonassessable and, to such counsel's knowledge, none of them will have been issued in violation of any preemptive or other similar right. There are no preemptive rights or any restrictions upon the voting or transfer of any securities of the Company pursuant to the Company's Certificate of Incorporation or by-laws or other governing documents or any other instrument known to us to which the Company is a party or by which it may be bound. To such counsel's knowledge, except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue, any share of stock of the Company or any security convertible into, exercisable for, or exchangeable for stock of the Company. The capital stock of the Company, including the Common Stock and the Shares, conforms in all material respects to the descriptions thereof contained in the Registration Statement and the Disclosure PackageProspectus. The issued and outstanding shares of capital stock of each of the Delaware Subsidiaries have been duly authorized and validly issued, are fully paid and (ii) on each Closing Datenonassessable and are owned by Midland Credit Management, Inc., a signed letter from the Auditor addressed Kansas corporation, free and clear of any perfected security interest or, to the Representative and dated the date knowledge of such Closing Date(s)counsel, in form and substance reasonably satisfactory to the Representative 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 any other security interests, liens, encumbrances, equities or claims, other than those contained in the Registration Statement and the Prospectus.
(fiv) On each Closing DateAll necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the Representative shall have received issuance and sale of the favorable opinionShares. This Agreement has been duly and validly authorized, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to executed and delivered by the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(gv) On each Closing DateNeither the execution, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form delivery and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery performance of this Agreement orby the Company nor the consummation of any of the transactions contemplated hereby (including the issuance and sale by the Company of the Shares) will (A) give rise to a right to terminate or accelerate the due date of any payment due under, if earlier, the dates as of which information is given or conflict with or result in the Registration Statementbreach of any term or provision of, the General Disclosure Package or the Prospectus: constitute a default (ior any event which with notice or lapse of time, or both, would constitute a default) there shall not have been any material change under, or require consent or waiver under, or result in the capital stock execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any Subsidiary pursuant to (x) the terms of any material change indenture, mortgage, deed of trust, note or other agreement or instrument of which such counsel is aware and to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary or any of their properties or businesses is bound, or (y) any judgment, decree, order, statute, rule or regulation of which such counsel is aware, in the indebtedness case of this clause (other than in the ordinary course of businessy) of the Transaction Entitiesonly, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to which would have a Material Adverse Effect, or (ivB) no legal violate any provision of the charter or by-laws of the Company or any Subsidiary.
(vi) No consent, approval, authorization or order of any court or governmental actionagency or regulatory body of the United States of America is required for the execution, suit delivery or proceeding affecting performance of this Agreement by the Transaction Entities Company or any the consummation of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall hereby, except such as have been instituted obtained under the Securities Act and such as may be required under state securities or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements Blue Sky laws in connection with the Offeringpurchase and distribution of the Shares by the several Underwriters.
(mvii) To such counsel's knowledge, except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation, before any court or before or by any public body or board pending or threatened against, or involving the assets, properties or businesses of, the Company or its Subsidiaries which individually or in the aggregate could have a Material Adverse Effect.
(viii) The statements in the Prospectus under the captions "Business Government Regulation," "Management - Employment Agreements," "Management Compensation Under Plans," "Certain Transactions - Stockholders' Agreements" (as to those agreements to which the Company shall have furnished or caused to be furnished to is a party), "Description of Capital Stock" and "Shares Eligible for Future Sale," and the Representative such further customary certificates or documents as statements describing the Representative shall have reasonably requested.Company's warehouse facility and revolving line of credit under "Management's Discussion and Analysis of Financial Condition and Results of Operations - Liquidity and Capital Resources," insofar
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the several Underwriters to purchase and pay for the Shares are as provided herein shall be subject to each the accuracy of the representations and warranties of the Company, in the case of the Firm Shares as of the date hereof and the First Closing Date (as if made on and as of the First Closing Date) and in the case of the Option Shares, as of the date hereof and the Second Closing Date (as if made on and as of the Second Closing Date), to the performance by the Company of its obligations hereunder, and to the satisfaction of the following terms additional conditions on or before the First Closing Date in the case of the Firm Shares and conditionson or before the Second Closing Date in the case of the Option Shares:
(a) Notification that the The Registration Statement has shall have become effective not later than 5:00 P.M. Minneapolis time, on the first full business day following the date of this Agreement, or such later date as shall be consented to in writing by the Representative (the "Effective Date"). If the Company has elected to rely upon Rule 430A, the information concerning the price of the Shares and price-related information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been received by transmitted to the SEC for filing pursuant to Rule 424(b) within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative and the Prospectus of such timely filing (or a post-effective amendment providing such information shall have been timely promptly filed with the Commission and declared effective in accordance with Section 4(a) of this Agreement the 1933 Act and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) and Regulations). No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no stop order suspending the effectiveness thereof shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before Company or the Representative, threatened by the Commission, and SEC or any requests state securities commission or similar regulatory body. Any request of the SEC for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission Underwriters and their legal counsel. The NASD, upon review of the Representative. If terms of the Company has elected to rely upon Rule 430AOffering, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall not have been transmitted objected to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties terms of the Company contained in this Agreement and Underwriters' participation in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing DateOffering.
(db) The Representative shall not have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of advised the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date that the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing or Prospectus, when considered together with the General Disclosure Packageor any amendment thereof or supplement thereto, included, contains any untrue statement of a fact which is material fact and did not omit or omits to state a fact which is material fact and is required to be stated therein or is necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading; provided, however, that this Section 4(b) shall not apply to statements in, or omissions from, the Registration Statement or Prospectus, or any amendment thereof or supplement thereto, which are based upon and conform to written information furnished to the Company by any of the Underwriters specifically for use in the preparation of the Registration Statement or the Prospectus, or any such amendment or supplement.
(c) Subsequent to the date as of which information is given the Registration Statement and Prospectus, there shall not have occurred any change, or any development involving a prospective change, which materially and adversely affects the business or properties of the Company and which, in the reasonable opinion of the Representative, materially and adversely affects the market for the Shares.
(d) The Representative shall have received the opinion of Johnson, Killen, Xxxxxxxxx & Xxxxxx, P.A. and the opinion of Lommen, Nelson, Xxxx & Xxxxxxxxx, P.A., counsel for the Company, dated as of such respective Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and its counsel, to the effect that:
(i) The Company has been duly incorporated and is validly existing in good standing under the laws of the State of Minnesota with the requisite corporate power to own, lease and operate its properties and conduct its business as described in the Prospectus; and is duly qualified to do business as a foreign corporation in good standing in all jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification and in which the failure to be so qualified or in good standing would have a material adverse effect on its business. The activities of the Company are permitted under the 1933 Act, the Rules and Regulations and other applicable laws.
(ii) The number of authorized, issued and outstanding shares of capital stock of the Company are as set forth under the caption "Capitalization" in the Prospectus. The outstanding shares of capital stock of the Company have been duly authorized and validly issued, and (B) since are fully paid and nonassessable. Upon delivery of and payment for the Effective Date Shares hereunder, the Underwriters will acquire the Shares free and clear of all liens, encumbrances or claims. To the best of such counsel's knowledge, no event has occurred preemptive rights, contractual or otherwise, of securities holders of the Company exist with respect to the issuance or sale of the Shares by the Company pursuant to this Agreement or the issuance of the Warrant Shares upon exercise of the Representative's Warrants. To the best of such counsel's knowledge, no rights to require registration of shares of Common Stock or other securities of the Company exist which should have been may be exercised in connection with the filing of the Registration Statement. The Shares, Representative's Warrants and Warrant Shares conform as to matters of law in all material respects to the description of such securities made in the Prospectus and such description accurately sets forth the material legal provisions thereof required to be set forth in a supplement or otherwise required an amendment the Prospectus.
(iii) The Shares have been duly authorized and, upon delivery to the Registration StatementUnderwriters against payment therefor, the General Disclosure Package or the Prospectus; will be validly issued, fully paid and nonassessable.
(iv) The certificates evidencing the Shares comply as to form with the applicable provisions of the laws of the State of Minnesota.
(v) The Representative's Warrants have been duly authorized, executed and delivered by the Company and are the valid and binding obligations of the Company, enforceable in accordance with their terms, except as enforceability may be limited by the application of bankruptcy, insolvency, moratorium, or other laws of general application affecting the rights of creditors generally and by judicial limitations on the right of specific performance and other equitable remedies. The Warrant Shares when issued in accordance with the terms of this Agreement and pursuant to the Representative's Warrants will be validly issued, fully paid and nonassessable. A sufficient number of shares of Common Stock has been reserved for issuance upon exercise of the Representative's Warrants.
(vi) The Registration Statement has become and is effective under the 1933 Act, the Prospectus has been filed as required by Rule 424(b), if necessary and, to the best knowledge of such counsel, no stop order orders suspending the effectiveness of the Registration Statement has have been issued and, to their knowledge, and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole0000 Xxx.
(evii) The Representative shall have received: (i) simultaneously with To the execution best of this Agreement such counsel's knowledge, there are no material legal or governmental proceedings of a signed letter from character required by the Auditor addressed 1933 Act and the Rules and Regulations to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory be described or referred to the Representative, 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 and or Prospectus that are not described or referred to therein. All pending legal or governmental proceedings, if any, to which the Disclosure Package, and (ii) on each Closing Date, Company is a signed letter from the Auditor addressed party or to the Representative and dated the date which any of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 its property is subject which are not described in the Registration Statement and the Prospectus, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material to the Company.
(fviii) On each Closing DateNo authorization, approval or consent of any governmental authority or agency is necessary in connection with the Representative shall have received issuance and sale of the favorable opinionShares as contemplated under this Agreement, dated except such as may be required and obtained under the 1933 Act or under state or other securities laws in connection with the purchase and distribution of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for Shares by the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(iix) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, when it became effective, the General Disclosure Package Prospectus and any amendments thereof or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness supplements thereto, (other than the financial statements and supporting financial and statistical data included or incorporated therein, as to which such counsel need express no opinion) on the date of filing or the date thereof, complied as to form in all material respects with the ordinary course of business) requirements of the Transaction Entities1933 Act and the Rules and Regulations, (ii) except as set forth or contemplated by and the Registration Statement, conditions for use of a registration statement on Form SB-2 for the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall distribution of shares have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection satisfied with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the OfferingCompany.
(mx) The Company shall have furnished This Agreement has been duly authorized, executed and delivered by, and is a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforceability may be limited by the application of bankruptcy, insolvency, moratorium or caused similar laws affecting the rights of creditors generally and judicial limitations on the right of specific performance and except as the enforceability of indemnification or contribution provisions hereof may be limited by federal or state securities laws.
(xi) Such counsel does not know of any contracts, agreements, documents or instruments required to be furnished filed as exhibits to the Representative Registration Statement or described in the Registration Statement or the Prospectus which are not so filed or described as required, and does not know of any amendment to the Registration Statement required to be filed that has not been filed; and insofar as any statements in the Registration Statement or the Prospectus constitute summaries of any contract, agreement, document or instrument to which the Company is a party, such further customary certificates statements are accurate summaries and fairly present the information called for with respect to such matters.
(xii) To the best of such counsel's knowledge, there are no defects in title or documents leasehold interests, or any liens, encumbrances, equities, charges or claims, not disclosed in the Registration Statement or Prospectus which would materially affect the present occupancy or use of any of the real or personal property owned or leased by the Company.
(xiii) To the best of such counsel's knowledge, except as described in the Representative shall Prospectus, there are no United States patents of third parties which are infringed by the manufacture, use or sale of the products or processes currently made, used or sold by the Company.
(xiv) To the best of such counsel's knowledge there are no legal, governmental or administrative proceedings pending or threatened against the Company that relate to patents, trademarks or other intellectual property, except for pending or proposed United States and foreign patent applications.
(xv) To the best of such counsel's knowledge, except as described in the Prospectus, after due inquiry, the Company has not received any notice of conflict with the asserted rights of others in respect of any trademarks, service marks, trade names, trademark registrations, service xxxx registrations, copyrights, licenses, inventions, trade secrets, patents, patent applications, know-how, or similar rights, nor of any threatened actions with respect thereto, which, if determined adversely to the Company, would individually or in the aggregate have reasonably requesteda material adverse effect on the general affairs, financial position, net worth or results of operations of the Company.
(xvi) To the best of such counsel's knowledge, after due inquiry, the Company owns, possesses or is licensed under all such material trademarks, trademark applications, trademark registrations, service marks, service xxxx registrations, copyrights, patents, patent applications and licenses as are described in the Prospectus and which are necessary for the Company's present or planned future business as described in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Industrial Rubber Products Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Securities hereunder are subject to each the continued accuracy in all material respects of the representations and warranties of the Company herein contained, to the accuracy of the statements of the Company made in any certificate pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to the following terms and further conditions:
(a) Notification that the The Registration Statement has shall have become effective shall have been received not later than 5:30 P.M. on the date hereof, or at such later time and date as may be approved by the Representative Underwriters and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of and shall remain effective at the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) Closing Date. No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no stop order suspending the effectiveness of the Registration Statement shall be in effect and no have been issued under the Act or proceedings for such purpose shall be pending before therefor initiated or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A the price of the Securities and any price-related information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period period, and prior to the Closing Date, the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements requirement of Rule 430A.
(cb) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed furnished to the Underwriters the opinion of Xxxx, Gotshal & Xxxxxx, counsel for the Company, dated the Closing Date, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of New York, with all requisite corporate power and authority to own its properties and conduct its business as described in the Prospectus, and, to the best knowledge of such counsel, is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction where the nature of its business requires such qualification except where the failure of the Company to be so qualified would not, singly or in the aggregate, have a materially adverse effect on the condition (financial or otherwise), earnings or business of the Company and the Subsidiaries (as defined below), considered as a whole (solely for purposes of this Section 5(b), a "Material Adverse Effect");
(ii) Each of Leucadia, Inc. and LNC Investments, Inc. and any other corporations of which the Company owns more than 50% of the outstanding capital stock, directly or indirectly, and which contributed 10% or more of the Company's consolidated revenues for the year ended December 31, 1995 or which represented 10% or more of the Company's consolidated total assets at December 31, 1995, which information may be based upon a certificate of an officer of the Company (collectively, solely for purposes of this Section 5(b), the "Subsidiaries") (other than Charter National Life Insurance Company ("Charter"), Empire Insurance Company ("Empire") and Colonial Penn Group, Inc. ("CPG") and its subsidiaries (collectively, the "Insurance Subsidiaries") and other than Phlcorp, Inc. ("Phlcorp")) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is organized, with all requisite corporate power and authority to own its properties and conduct its business as described in the Prospectus, and, to the best knowledge of such counsel, is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction where the nature of its activities requires such qualification, except where the failure of such Subsidiary to be so qualified would not, singly or in the aggregate, have a Material Adverse Effect;
(iii) To the knowledge of such counsel, all the outstanding shares of capital stock of each Subsidiary (other than the Insurance Subsidiaries and Phlcorp) have been duly authorized and validly issued and are fully paid and non-assessable, and, except as otherwise set forth in the Registration Statement and the Prospectus, to such counsel's knowledge, all outstanding shares of capital stock of such Subsidiaries (other than the Insurance Subsidiaries and Phlcorp) are owned by the Company, either directly or through wholly-owned Subsidiaries, free and clear of any security interests, claims, liens or encumbrances;
(iv) Such counsel does not know of any pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries required to be disclosed in the Prospectus, which is not adequately disclosed in the Prospectus, or any franchise, contract or other document that is material to the Company and its Subsidiaries, considered as a whole, and required to be described in the Registration Statement or the Prospectus, or to be filed as an exhibit, which is not described or filed as required;
(a) The Registration Statement has become effective under the Act; (b) any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and (c) to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened;
(vi) The Company meets the requirements for the use of Form S-3 under the Act;
(a) Each of the Registration Statement and the Prospectus (other than the financial statements (including the notes thereto) and schedules and other financial and statistical data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects all covenants and agreements and satisfied all with the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, applicable requirements of the chief executive or chief operating officer Act and the chief financial officer or chief accounting officer of the Company to the effect that: rules thereunder; and (ib) the representationsIncorporated Documents (other than the financial statements (including the notes thereto) and schedules and other financial and statistical data contained or incorporated by reference therein, warranties and agreements of the Company in this Agreement were true and correct as to which such counsel need express no opinion), when made and are true and correct filed, or as of such Closing Date; (ii) the Company has performed amended or supplemented, complied as to form in all material respects all covenants with the requirements of the Exchange Act;
(viii) Each of this Agreement and agreements the Pricing Agreement has been duly authorized, executed and satisfied all conditions contained herein; delivered by the Company;
(iiiix) they No consent, approval, authorization or order of any New York, Delaware corporate or Federal governmental agency or body or, to our knowledge, any court, is required for the consummation of the transactions contemplated hereby, except such as have carefully examined been obtained under the Registration StatementAct and the Trust Indenture Act and such as may be required under the blue sky or insurance laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters (as to which such counsel need express no opinion);
(x) Neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, will conflict with, result in a breach of, or constitute a default under, the Prospectusterms of any indenture or other agreement or instrument known to such counsel to which the Company or any of the Subsidiaries is bound or any order, regulation, consent or memorandum of understanding of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the General Disclosure PackageCompany or any of the Subsidiaries of which such counsel is aware and known by such counsel to be applicable to the Company or any of the Subsidiaries (where such conflict, breach or default would, singly or in the aggregate, have a Material Adverse Effect) or the charter or by-laws of the Company;
(xi) The Securities have been duly authorized by the Company for issuance; the Securities, when executed by the Company and authenticated by the Trustee in accordance with the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee) and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement and the Pricing Agreement, will constitute valid and legally binding obligations of the Company entitled to the benefits of the Indenture, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally, and any individual Issuer Free Writing Prospectus subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law);
(xii) The Company's outstanding Common Shares have been duly authorized and validly issued and are fully paid and non-assessable; and the shareholders of the Company have no preemptive rights with respect to the Common Shares;
(xiii) The Indenture has been duly and validly authorized by the Company and has been duly qualified under the Trust Indenture Act and, in their opinion when duly executed and delivered by the Company (A) as assuming the due authorization, execution and delivery by the Trustee), will constitute a valid and legally binding obligation of the Effective Date Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law);
(xiv) The Securities, when issued, and the Indenture conform in all material respects to the description thereof contained in the Prospectus;
(xv) The Company is not (a) an "investment company" within the meaning of the Investment Company Act of 1940, as amended, or (b) a bank holding company under the Bank Holding Company Act. In addition, such counsel shall also state that such counsel have participated in conferences with representatives of the Underwriters, officers and other representatives of the Company and its subsidiaries and representatives of the independent certified public accountants of the Company, at which conferences the contents of the Registration Statement and the Prospectus did and related matters were discussed and, although such counsel have not includeindependently verified and are not passing upon and do not assume any responsibility for the accuracy, and as completeness or fairness of the Applicable Timestatements contained in the Registration Statement and the Prospectus (except as set forth in clause (xiv) of this Section 5(b)), neither on the basis of the foregoing (i) relying as to materiality to a large extent upon the General Disclosure Packageopinions of officers and other representatives of the Company), nor (ii) any individual Issuer Free Writing Prospectus, when considered together with no facts have come to the General Disclosure Package, included, any attention of such counsel which lead such counsel to believe that the Registration Statement at the time it became effective or at the Representation Date contained an untrue statement of a material fact and did not omit or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, at the Representation Date (unless the term "Prospectus" refers to a prospectus which has been provided to the Underwriters by the Company for use in connection with the offering of the Securities which differs from the Prospectus on file at the Commission at the Representation Date, in which case at the time it is first provided to the Underwriters for such use) or at the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided, that such counsel need not express any view with respect to (i) the Form T-1 and (ii) the financial statements (including the notes thereto), supporting schedules or any other financial and statistical data set forth or referred to or incorporated by reference in the Registration Statement or the Prospectus. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than New York or the federal law of the United States, to the extent they deem proper and specified in such opinion, upon the opinions of other counsel and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment as to matters of fact, to the Registration Statementextent they deem proper, the General Disclosure Package on representations or the Prospectus; (iv) no stop order suspending the effectiveness certificates of responsible officers of the Registration Statement has been issued and, Company and certificates of public officials. References to their knowledge, no proceedings for that purpose have been instituted the Prospectus in this Section 5(b) include any supplements thereto at or are pending under prior to the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeClosing Date.
(ec) The Representative General Counsel or Compliance Officer, as the case may be, of each of Charter, Empire and CPG and its subsidiaries shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed furnished to the Representative and Underwriters their opinions or certificates, as the case may be, dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.effect that:
(i) The Representative shall have received copies applicable Insurance Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Lock-up Agreements executed by each entity jurisdiction in which it is chartered or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Marketorganized, subject only with all requisite corporate power and authority to official notice of issuance.
(k) Subsequent to the execution own its properties and delivery of this Agreement or, if earlier, the dates conduct its business as of which information is given described in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction where the nature of its activities requires such qualification, except where the failure of such Insurance Subsidiary to be so qualified would not, singly or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entitiesaggregate, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting materially adverse effect on the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs earnings or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.such
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations obligation of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters Underwriter to purchase the Shares are is subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the The Prospectus Supplement shall have been timely filed with the Commission in accordance with Section 4(a5(a)(i) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.Underwriter.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d5(d) shall be true and correct when made and on and as of each the relevant Closing Date as if made on such date. The Company shall have materially performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such the relevant Closing Date.
(d) The Representative Underwriter shall have received on each the relevant Closing Date a certificate, addressed to the Representative Underwriter and dated such the relevant Closing Date, of the chief executive or chief operating officer or president and the chief financial officer or chief accounting officer of the Company to the effect that: (i) stating that the representationssigners of such certificate have carefully examined the Registration Statement, the Prospectus and this Agreement and that the representations and warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct on and as of such the relevant Closing Date; (ii) Date with the same effect as if made on the relevant Closing Date and the Company has materially performed in all material respects all covenants and agreements and satisfied all conditions contained herein; in this Agreement required to be performed or satisfied by it at or prior to the relevant Closing Date, (ii) stating that no stop order suspending the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for that purpose are pending before or have been threatened by the Commission and (iii) they setting forth such other matters as the Underwriter shall reasonably request.
(e) The Underwriter shall have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, received letters on and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective date of this Agreement and the relevant Closing Date (in the latter case constituting a reaffirmation of the statements set forth in the former), in form and substance reasonably satisfactory to the Underwriter, from Ernst & Young LLP with respect to the financial statements and certain financial information contained and incorporated by reference in the Registration Statement and the Prospectus did not include(as such documents may be amended and supplemented at the date of the relevant letter), which letters shall also confirm that they are independent accountants within the meaning of the Securities Act and the Rules and that the response to Item 10 of the Registration Statement is correct insofar as it relates to them.
(f) The Underwriter shall have received on the relevant Closing Date from Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, counsel for the Company, an opinion, addressed to the Underwriter and dated the relevant Closing Date, and as of the Applicable Time, neither stating in effect that:
(i) The Company is a corporation duly incorporated and validly existing under the General Disclosure Packagelaws of the state of Washington, nor has paid all excise taxes required by the Washington Department of Revenue and is duly authorized to transact business in the corporate form in the state of Washington. The Restated Articles of Incorporation of the Company have been duly adopted by all necessary corporate and shareholder action and have been duly filed with the Secretary of State of the state of Washington.
(ii) The Company has the requisite corporate power and corporate authority to own its property and to conduct its business as described in the Registration Statement and the Prospectus, to enter into, deliver and perform its obligations under, this Agreement and to issue the Shares.
(iii) The issuance of the Shares without certificates has been duly authorized by all necessary corporate action. The issuance and sale of the Shares have been duly authorized by the Company and, when issued and delivered in accordance with the terms of this Agreement, the Shares will be validly issued, fully paid and non-assessable, and the issuance of the Shares will not be subject to any individual Issuer Free Writing statutory or, to such counsel's knowledge, contractual, preemptive or similar rights. The shares of Company Common Stock outstanding prior to the issuance of the Shares have been duly authorized and are validly issued, fully paid and non-assessable and, to such counsel's knowledge, none of such shares were issued in violation of any statutory preemptive or similar rights or of any contractual preemptive or similar rights. There are no preemptive or other rights to subscribe for or to purchase shares of the Company's capital stock and no restrictions upon the voting or transfer of any securities of the Company pursuant to the Company's Restated Articles of Incorporation or its Amended and Restated Bylaws or any agreement or other instrument filed by the Company as an exhibit to the Registration Statement or to any document incorporated by reference therein (collectively, the "Material Contracts"). Except as disclosed in or contemplated by the Prospectus, to such counsel's knowledge, there are 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 for capital stock of the Company. The authorized capital stock of the Company conforms in all material respects as to legal matters to the description thereof in the Prospectus.
(A) The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of the Company.
(B) This Agreement has been duly executed and delivered by the Company and is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms.
(v) No authorization, consent, approval of or qualification with any governmental authority is required for the execution and delivery of this Agreement by the Company and for the performance by the Company of its obligations hereunder, except such as have been made or obtained under the Securities Act or such as may be required under state or other blue sky laws (as to which such counsel need express no opinion) in connection with the purchase and distribution of the Shares by the Underwriter.
(vi) The execution, delivery and performance of this Agreement does not, and the issuance of the Shares as contemplated by this Agreement will not, (a) conflict with or violate the Company's Restated Articles of Incorporation or its Amended and Restated Bylaws, (b) constitute a breach of or constitute a default under any Material Contract, (c) conflict with or violate any judgment, order or decree of any court or governmental authority of which such counsel have knowledge applicable to the Company or any of its properties, or (d) result in a violation of, or conflict with, any statute, rule or regulation of federal or Washington law by which the Company is bound.
(vii) To such counsel's knowledge, there are no legal or governmental proceedings that are pending or threatened against the Company or any of its properties that are required to be described in the Prospectus and are not so described, and, to such counsel's knowledge, there is no contract or other document that is required to be described in the Registration Statement or the Prospectus or is required to be filed as an exhibit to the Registration Statement which is not so described or filed as required.
(viii) The Registration Statement and Prospectus (except the financial statements, schedules and other financial and statistical information contained therein, as to which such counsel need express no opinion) as of their respective dates complied as to form in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder, and the documents incorporated by reference in the Prospectus, when considered together filed with the General Disclosure PackageCommission under the Exchange Act, includedcomplied as to form in all material respects with the requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder.
(ix) Based solely on verbal advice from the staff of the Commission, the Registration Statement has become effective under the Securities Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement or preventing the use of the Prospectus has been issued and no proceedings for that purpose have been instituted or, to such counsel's knowledge, are pending or contemplated under the Securities Act. The Prospectus Supplement has been filed with the Commission pursuant to Rule 424(b) of the Securities Act in the manner and within the time period required by such rule.
(x) The Company is not, and after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Prospectus will not be, required to register as an "investment company" as such term is defined in the Investment Company Act of 1940, as amended.
(xi) To such counsel's knowledge, no holder of any security of the Company has any right that has not expired or been exercised or waived to require registration of any security in connection with the offering contemplated by this Agreement. In rendering such opinion, such counsel may state that they express no opinion as to the laws of any jurisdiction other than the federal laws of the United States and the laws of the States of Washington and New York. To the extent deemed advisable by such counsel, they may rely as to matters of fact on certificates of responsible officers of the Company and public officials. Copies of certificates of any public officials shall be furnished to the Underwriter and counsel for the Underwriter. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the Underwriter and representatives of the independent certified public accountants of the Company, at which conferences the contents of the Registration Statement and the Prospectus and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Prospectus (except as specified in the foregoing opinion), on the basis of the foregoing, no facts have come to the attention of such counsel which lead such counsel to reasonably believe that the Registration Statement at the time it became effective (except with respect to the financial statements and notes and schedules thereto and other financial and statistical data, as to which such counsel need express no belief) contained any untrue statement of a material fact and did not omit or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus as amended or supplemented (except with respect to the financial statements, notes and schedules thereto and other financial data, as to which such counsel need make no statement) on the date thereof 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, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the The Prospectus shall have been timely filed with the Commission in accordance with Section 4(a6(A)(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.Representatives.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d5(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The date and the Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) that the representationssigners of such certificate have carefully examined the Registration Statement, the Prospectus and this Agreement and that the representations and warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct on and as of such Closing Date; (ii) Date with the same effect as if made on such Closing Date and the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact this Agreement required to be stated therein performed or necessary satisfied by it at or prior 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholesuch Closing Date.
(e) The Representative Representatives shall have received: (i) simultaneously with received on the execution of Effective Date, at the time this Agreement is executed and on each Closing Date a signed letter from the Auditor Coopers & Xxxxxxx L.L.P. addressed to the Representative Representatives and dated dated, respectively, the Effective Date, the date of this AgreementAgreement and each such Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives.
(f) The Representatives shall have received on each Closing Date from Xxxxx Xxxxxxxxxx, containing statements counsel for the Company, an opinion, addressed to the Representatives and information dated such Closing Date, and stating in effect that: (i) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the type ordinarily included State of Delaware. The Company is duly qualified and in accountants’ “comfort letters” good standing as a
(ii) The Company has all requisite corporate power and authority to underwriters with respect to the financial statements own, lease and certain financial information contained license its assets and properties and conduct its business as described in the Registration Statement and the Disclosure PackageProspectus; and the Company has all requisite corporate power and authority and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and sell the Shares other than those required under state and foreign Blue Sky laws.
(iii) The authorized and issued capital stock of the Company is as set forth in the Registration Statement and the Prospectus; the certificates evidencing the Shares are in due and proper legal form and have been duly authorized for issuance by the Company; all of the outstanding shares of Common Stock of the Company have been duly and validly authorized and have been duly and validly issued and are fully paid and nonassessable and none of them was issued in violation of any preemptive right, right of first refusal or first offer or other similar right, except for those violations which have since been validly waived. The Shares when issued and sold pursuant to this Agreement will be duly and validly issued, outstanding, fully paid and nonassessable and none of them will have been issued in violation of any preemptive right, right of first refusal or first offer or other similar right. To the best of such counsel's knowledge, except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and (ii) on each Closing Dateno commitment, a signed letter from plan or arrangement to issue, any share of stock of the Auditor addressed Company or any security convertible into, exercisable for, or exchangeable for stock of the Company. The Common Stock and the Shares conform in all material respects to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 descriptions thereof contained in the Registration Statement and the Prospectus.
(fiv) On each Closing DateTo the best of such counsel's knowledge, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or, except as
(v) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly authorized, executed and delivered by the Company.
(vi) Neither the execution, delivery and performance of this Agreement by the Company nor the consummation of any of the transactions contemplated hereby (including, without limitation, the Representative shall issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or any event which with notice or lapse of time, or both, would constitute a default) under, or require consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company pursuant to the terms of any indenture, mortgage, deed of trust, note or other agreement or instrument known to such counsel and to which the Company is a party or by which it or any of its properties or businesses is bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation known to such counsel or violate any provision of the charter or by-laws of the Company.
(vii) No consent, approval, authorization or order of any court or governmental agency or body is required for the performance of this Agreement by the Company or the consummation of the transactions contemplated hereby, including without limitation the sale of the Shares, except such as have received been obtained under the favorable opinion, dated Securities Act and such as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the several Underwriters.
(viii) To the best of such Closing Datecounsel's knowledge, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLCthere is no litigation or governmental or other proceeding or investigation, as counsel before any court or before or by any public body or board pending or threatened against, or involving the assets, properties or businesses of, the Company which, if determined adversely to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.would
(gix) On each Closing DateThe statements in the Prospectus under the captions "Risk Factors - Need to Establish Collaborative Commercial Relationships; Dependence on Partners"; "Risk Factors - Availability of Materials"; "Risk Factors - Dependence on Third Parties;" "Risk Factors - Control by Existing Stockholders; Anti-Takeover Provisions"; "Risk Factors - Future Sales of Common Stock; Registration Rights; Possible Adverse Effect on Future Market Price"; "Business - Licenses"; "Business - Research and Development Collaborations"; "Business - Government Grants"; "Business -- Patents and Proprietary Technology" (to the extent such section describes the Columbia License Agreement (as defined below), the Representative shall Xxxxx-Xxxxxxxxx License Agreement (as defined below) and the patents and patent applications licensed to the Company thereby); "Certain Transactions"; "Description of Capital Stock"; and "Shares Eligible for Future Sale", insofar as such statements constitute a summary of documents referred to therein or matters of law, are fair summaries in all material respects and accurately present in all material respects the information called for with respect to such documents and matters. All contracts and other documents known to such counsel and required to be filed as exhibits to, or described in, the Registration Statement have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection been so filed with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity Commission or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given are fairly described in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requestedcase may be.
Appears in 1 contract
Samples: Underwriting Agreement (Progenics Pharmaceuticals Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the The Prospectus shall have been timely filed with the Commission in accordance with Section 4(a6(a)(i) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.Representatives.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d5(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The date and the Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: that (i) the representationssigners of such certificate have carefully examined the Registration Statement, the Prospectus and this Agreement and that the representations and warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct on and as of such Closing Date; (ii) Date with the same effect as if made on such Closing Date and the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact this Agreement required to be stated therein performed or necessary satisfied by it at or prior to make the statements therein, in light of the circumstances under which they were made, not misleading, such Closing Date and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (ivii) no stop order suspending the effectiveness of the Registration Statement has been issued and, and to the best of their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with received on the execution of Effective Date, at the time this Agreement is executed and on each Closing Date a signed letter from the Auditor Xxxxxx Xxxxxxxx LLP addressed to the Representative Representatives and dated dated, respectively, the Effective Date, the date of this AgreementAgreement and each such Closing Date, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the ProspectusRepresentatives.
(f) On each Closing Date, the Representative The Representatives shall have received on each Closing Date from Ropes and Xxxx, counsel for the favorable Company, an opinion, addressed to the Representatives and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel in a form reasonably acceptable to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentatives.
(g) On each Closing Date, the Representative The Representatives shall have received the favorable tax opinionon each Closing Date from Xxxx and Xxxx LLP, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax patent counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance an opinion addressed to the Representative Representatives and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares dated such Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection effect that such counsel is familiar with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.technology used by
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations obligation of the Underwriters under this Agreement are several Underwriter to purchase and not joint. The respective obligations pay for the Shares as provided herein shall be subject to the accuracy of the Underwriters representations and warranties of the Company, in the case of the Firm Shares as of the date hereof and the First Closing Date (as if made on and as of the First Closing Date) and in the case of the Option Shares, as of the date hereof and the Second Closing Date (as if made on and as of the Second Closing Date), to purchase the Shares are subject performance by the Company of its obligations hereunder, and to each the satisfaction of the following terms additional conditions on or before the First Closing Date in the case of the Firm Shares and conditionson or before the Second Closing Date in the case of the Option Shares:
(a) Notification that the The Registration Statement has shall have become effective not later than 5:00 P.M. Minneapolis time, on the first full business day following the date of this Agreement, or such later date as shall be consented to in writing by the Underwriter (the "Effective Date"). If the Company has elected to rely upon Rule 430A, the information concerning the price of the Shares and price-related information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been received by transmitted to the Representative SEC for filing pursuant to Rule 424(b) within the prescribed time period, and prior to the Prospectus Closing Date the Company shall have provided evidence satisfactory to the Underwriter of such timely filing (or a post-effective amendment providing such information shall have been timely promptly filed with the Commission and declared effective in accordance with Section 4(a) of this Agreement the 1933 Act and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) and Regulations). No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no stop order suspending the effectiveness thereof shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before Company or the Underwriter, threatened by the Commission, and SEC or any requests state securities commission or similar regulatory body. Any request of the SEC for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission Underwriter and its legal counsel. The NASD, upon review of the Representative. If terms of the Company has elected to rely upon Rule 430AOffering, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall not have been transmitted objected to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties terms of the Company contained in this Agreement and Underwriter's participation in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing DateOffering.
(db) The Representative Underwriter shall not have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of advised the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date that the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing or Prospectus, when considered together with the General Disclosure Packageor any amendment thereof or supplement thereto, included, contains any untrue statement of a fact which is material fact and did not omit or omits to state a fact which is material fact and is required to be stated therein or is necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading; provided, however, that this Section 4(b) shall not apply to statements in, or omissions from, the Registration Statement or Prospectus, or any amendment thereof or supplement thereto, which are based upon and conform to written information furnished to the Company by the Underwriter specifically for use in the preparation of the Registration Statement or the Prospectus, or any such amendment or supplement.
(c) Subsequent to the date as of which information is given the Registration Statement and Prospectus, there shall not have occurred any change, or any development involving a prospective change, which materially and adversely affects the business or properties of the Company and which, in the reasonable opinion of the Underwriter, materially and adversely affects the market for the Shares.
(d) The Underwriter shall have received the opinion of Johnson, Killen, Xxxxxxxxx & Xxxxxx, P.A. and the opinion of Lommen, Nelson, Xxxx & Xxxxxxxxx, P.A., counsel for the Company, dated as of such respective Closing Date, addressed to the Underwriter and satisfactory in form and substance to the Underwriter and its counsel, to the effect that:
(i) The Company has been duly incorporated and is validly existing in good standing under the laws of the State of Minnesota with the requisite corporate power to own, lease and operate its properties and conduct its business as described in the Prospectus; and is duly qualified to do business as a foreign corporation in good standing in all jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification and in which the failure to be so qualified or in good standing would have a material adverse effect on its business. The activities of the Company are permitted under the 1933 Act, the Rules and Regulations and other applicable laws.
(ii) The number of authorized, issued and outstanding shares of capital stock of the Company are as set forth under the caption "Capitalization" in the Prospectus. The outstanding shares of capital stock of the Company have been duly authorized and validly issued, and (B) since are fully paid and nonassessable. Upon delivery of and payment for the Effective Date Shares hereunder, the Underwriter will acquire the Shares free and clear of all liens, encumbrances or claims. To such counsel's knowledge, no event has occurred preemptive rights, contractual or otherwise, of securities holders of the Company exist with respect to the issuance or sale of the Shares by the Company pursuant to this Agreement or the issuance of the Warrant Shares upon exercise of the Underwriter's Warrants. To such counsel's knowledge, no rights to require registration of shares of Common Stock or other securities of the Company exist which should have been may be exercised in connection with the filing of the Registration Statement. The Shares, Underwriter's Warrants and Warrant Shares conform as to matters of law in all material respects to the description of such securities made in the Prospectus and such description accurately sets forth the material legal provisions thereof required to be set forth in a supplement or otherwise required an amendment the Prospectus.
(iii) The Shares have been duly authorized and, upon delivery to the Registration StatementUnderwriter against payment therefor, the General Disclosure Package or the Prospectus; will be validly issued, fully paid and nonassessable.
(iv) The certificates evidencing the Shares comply as to form with the applicable provisions of the laws of the State of Minnesota.
(v) The Underwriter's Warrants have been duly authorized, executed and delivered by the Company and are the valid and binding obligations of the Company, enforceable in accordance with their terms, except as enforceability may be limited by the application of bankruptcy, insolvency, moratorium, or other laws of general application affecting the rights of creditors generally and by judicial limitations on the right of specific performance and other equitable remedies. The Warrant Shares when issued in accordance with the terms of this Agreement and pursuant to the Underwriter's Warrants will be validly issued, fully paid and nonassessable. A sufficient number of shares of Common Stock has been reserved for issuance upon exercise of the Underwriter's Warrants.
(vi) The Registration Statement has become and is effective under the 1933 Act, the Prospectus has been filed as required by Rule 424(b), if necessary and, to the knowledge of such counsel, no stop order orders suspending the effectiveness of the Registration Statement has have been issued and, to their knowledge, and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities 1933 Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(evii) The Representative shall have received: (i) simultaneously with To such counsel's knowledge, there are no material legal or governmental proceedings of a character required by the execution of this Agreement a signed letter from 1933 Act and the Auditor addressed Rules and Regulations to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory be described or referred to the Representative, 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 and or Prospectus that are not described or referred to therein. All pending legal or governmental proceedings, if any, to which the Disclosure Package, and (ii) on each Closing Date, Company is a signed letter from the Auditor addressed party or to the Representative and dated the date which any of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 its property is subject which are not described in the Registration Statement and the Prospectus, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material to the Company.
(fviii) On each Closing DateNo authorization, the Representative shall have received the favorable opinion, dated as approval or consent of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken any governmental authority or agency is necessary in connection with the issuance and sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated herebyunder this Agreement, except such as may be required and obtained under the 1933 Act or under state or other securities laws in connection with the purchase and distribution of the Shares by the Underwriter.
(lix) On The conditions for use of a registration statement on Form SB-2 for the Firm Shares Closing Date, FINRA shall distribution of shares have confirmed that it has not raised any objection been satisfied with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the OfferingCompany.
(mx) The Company shall have furnished This Agreement has been duly authorized, executed and delivered by, and is a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforceability may be limited by the application of bankruptcy, insolvency, moratorium or caused similar laws affecting the rights of creditors generally and judicial limitations on the right of specific performance and except as the enforceability of indemnification or contribution provisions hereof may be limited by federal or state securities laws.
(xi) Such counsel does not know of any contracts, agreements, documents or instruments required to be furnished filed as exhibits to the Representative Registration Statement or described in the Registration Statement or the Prospectus which are not so filed or described as required, and does not know of any amendment to the Registration Statement required to be filed that has not been filed; and insofar as any statements in the Registration Statement or the Prospectus constitute summaries of any contract, agreement, document or instrument to which the Company is a party, such further customary certificates statements are accurate summaries and fairly present the information called for with respect to such matters.
(xii) To such counsel's knowledge, there are no defects in title or documents leasehold interests, or any liens, encumbrances, equities, charges or claims, not disclosed in the Registration Statement or Prospectus which would materially affect the present occupancy or use of any of the real or personal property owned or leased by the Company.
(xiii) To such counsel's knowledge, except as described in the Representative shall Prospectus, there are no United States patents of third parties which are infringed by the manufacture, use or sale of the products or processes currently made, used or sold by the Company.
(xiv) To such counsel's knowledge there are no legal, governmental or administrative proceedings pending or threatened against the Company that relate to patents, trademarks or other intellectual property, except for pending or proposed United States and foreign patent applications.
(xv) To such counsel's knowledge, except as described in the Prospectus, after due inquiry, the Company has not received any notice of conflict with the asserted rights of others in respect of any trademarks, service marks, trade names, trademark registrations, service xxxx registrations, copyrights, licenses, inventions, trade secrets, patents, patent applications, know-how, or similar rights, nor of any threatened actions with respect thereto, which, if determined adversely to the Company, would individually or in the aggregate have reasonably requesteda material adverse effect on the general affairs, financial position, net worth or results of operations of the Company.
(xvi) To such counsel's knowledge, after due inquiry, the Company owns, possesses or is licensed under all such material trademarks, trademark applications, trademark registrations, service marks, service xxxx registrations, copyrights, patents, patent applications and licenses as are described in the Prospectus and which are necessary for the Company's present or planned future business as described in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Industrial Rubber Products Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, Prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representatives of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
430A. If the Company has elected to rely upon Rule 434, a term sheet shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period. The Representatives shall be satisfied that (ci) The the representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) hereof shall be true and correct when made and on and as of each Closing Date as if made on such date, (ii) since the Effective Date, no event has occurred that, in the reasonable judgment of the Representatives, should have been set forth in a supplement or amendment to the Prospectus that has not been set forth in an effective supplement or amendment, and (iii) since the respective dates as of which information is given in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein, there has not been any material adverse change in the business, properties, financial condition or results of operations of the Company, and since such dates, the Company has not entered into any material transaction not referred to in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(dc) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained hereinon its part to be performed or satisfied hereunder on or prior to such Closing Date; (iii) they such officers have examined carefully examined the Registration Statement, Statement and the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their such officers’ opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary in order to make the statements thereintherein (with respect to the Prospectus, in the light of the circumstances under which they were made), not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the ProspectusProspectus and was not so set forth; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their such officers’ knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act.
(d) The Representatives shall have received a certificate on each Closing Date signed by the Secretary of the Company to the effect that, as of such Closing Date, the Secretary certifies as to: (i) (A) the accuracy of the Company’s certificate of incorporation and bylaws, (B) the resolutions of the Board of Directors and any committee thereof relating to the offering contemplated hereby, (C) the form of stock certificate representing the Shares, and (D) copies of all communications with the Commission; (ii) the execution and delivery of this Agreement; (iii) the incumbency and signature of persons signing this Agreement, the Registration Statement and other related documents; (iv) the approval of the Shares for listing on the Nasdaq National Market, subject to official notice of issuance; (v) the Company’s compliance with all conditions required hereunder; (vi) the consideration received for all outstanding shares of the Company’s Common Stock; and (vvii) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (such other matters as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeUnderwriters’ counsel may reasonably request.
(e) The Representative Representatives shall have been furnished evidence in the usual written or electronic form from the appropriate authorities of the applicable jurisdictions, or other evidence satisfactory to the Representatives, of the good standing and qualifications of the Company.
(f) The Representatives shall have received: (i) simultaneously with , at the execution of time this Agreement is executed and on each Closing Date, a signed letter from the Auditor Ernst & Young LLP addressed to the Representative Representatives and dated dated, respectively, the date of this AgreementAgreement and each such Closing Date, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives 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 and the Prospectus.
(fg) On The Representatives shall have received a copy of a letter from Ernst & Young LLP addressed to the Company, stating that their consideration of the Company’s internal accounting controls, to the extent they deemed necessary in establishing the scope of their examination of the Company’s financial statements filed with the Registration Statement and the Prospectus, did not disclose any weakness in internal controls that they considered to be material weaknesses.
(h) The Representatives shall have received on each Closing Date from Xxxxxx Godward LLP, counsel for the Company, an opinion, addressed to the Representatives and dated such Closing Date, in the form attached hereto as Annex I.
(i) The Representatives shall have received on each Closing Date from Bird & Bird, German counsel for the Company, an opinion, addressed to the Representatives and dated such Closing Date, in the form attached hereto as Annex II.
(j) The Representatives shall have received on each Closing Date, the Representative shall have received the favorable opinionfrom Xxxxx & Xxxxxxx, dated as of such Closing DateLLP, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as regulatory counsel to the Company, an opinion addressed to the Representatives dated such Closing Date, in the form attached hereto as Annex III.
(k) The Representatives shall have received on each Closing Date an opinion from Xxxxx & XxXxxxxx, LLP, special intellectual property counsel to the Company, and substance reasonably satisfactory Xxxxxxxx & Associates, special patent counsel to the Company, addressed to the Representatives and dated such Closing Date, in the forms attached hereto as Annex IV and Annex V, respectively.
(l) The legality and sufficiency of the sale of the Shares hereunder and the validity and form of the certificates representing the Shares, all corporate proceedings and other legal matters incident to the foregoing, and the form of the Registration Statement and of the Prospectus (except as to the financial statements and financial information contained therein) shall have been approved at or prior to the Closing Date by Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters.
(g) On each Closing Date, the Representative . The Representatives shall have received the favorable tax on each Closing Date from Xxxxxx, Xxxxx & Bockius LLP an opinion, addressed to the Representatives and dated as of such Closing Date, with respect to the issuance and sale of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLCthe Shares, the Registration Statement and the Prospectus and such other related matters as tax the Underwriters reasonably may request and such counsel for shall have received such documents and other information from the Company, in form and substance reasonably satisfactory Company as they request to counsel for the Underwritersenable them to pass upon such matters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(im) The Representative Representatives shall have received copies of the Locklock-up Agreements agreements executed by the directors, executive officers and each entity stockholder of the Company holding over 1% of the Company’s outstanding Common Stock (treating, for purposes of this Section 3(m), each holder of any security convertible into or person listed on Schedule IV heretoexercisable or exchangeable for shares of Common Stock or any warrant or other right to acquire shares of Common Stock or any such security as a holder of the shares of Common Stock underlying such security, warrant or right, and treating as outstanding, for purposes of this Section 3(m), each share of Common Stock underlying any such security, warrant or right).
(jn) The Shares shall have been approved for listing quotation on the NASDAQ Capital Nasdaq National Market, subject only to official notice of issuance.
(ko) Subsequent to All outstanding shares of the execution Company’s Series A Convertible Preferred Stock, $0.001 par value per share, Series B Convertible Preferred Stock, $0.001 par value per share, Series C Convertible Preferred Stock, $0.001 par value per share, and delivery of this Agreement orSeries D Redeemable Convertible Preferred Stock, if earlier$0.001 par value per share (collectively, the dates as “Preferred Stock”), shall have converted into the number of which information is given shares of Common Stock, and shall have converted in the manner, set forth in the Registration Statement, the General Disclosure Package or Statement and the Prospectus: (i) there ; the Company shall not have been any material change in duly effected and completed a [1-for-31] reverse stock split of the capital stock of the Company or any material change in the indebtedness (other than manner set forth in the ordinary course Registration Statement and the Prospectus; the Amended and Restated Certificate of business) Incorporation of the Transaction EntitiesCompany and the Amended and Restated Bylaws of the Company, (ii) except in the form filed as set forth or contemplated by Exhibit 3.2 and Exhibit 3.4 to the Registration Statement, the General Disclosure Package or the Prospectusrespectively, no material oral or written agreement or other transaction shall have been entered into by duly authorized and approved in accordance with the Transaction Entities that is not in Delaware General Corporation Law and shall have become, or, concurrently with the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings closing of the Transaction Entities, (iii) no loss or damage (whether or not insured) sale of the Firm Shares to the property of the Transaction Entities Underwriters pursuant to this Agreement, shall have been sustained that had or could reasonably become, effective and be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened in full force and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated herebyeffect.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(mp) The Company shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
Appears in 1 contract
Samples: Underwriting Agreement (Cryocor Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the The Prospectus shall have been timely filed with the Commission in accordance with Section 4(a6(A)(i) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A..
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d5(e) shall be true and correct when made and on and as of each Closing Date as if made on such date. The date and the Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any changes which would result in a Material Adverse Effect, or any development involving circumstances that could result in a prospective Material Adverse Effect, except in each case as described in or contemplated by the Prospectus (exclusive of any amendment or supplement thereto).
(e) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief and accounting officer of the Company to the effect that: (i) that the representationssigners of such certificate have carefully examined the Registration Statement, the Prospectus and this Agreement and that the representations and warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct on and as of such Closing Date; (ii) Date with the same effect as if made on such Closing Date and the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact this Agreement required to be stated therein performed or necessary satisfied by it at or prior 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each such Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital MarketEffective Date, subject only to official notice of issuance.
(k) Subsequent to at the execution and delivery of time this Agreement oris executed and on each Closing Date a signed letter from Ernst & Young LLP, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.addressed
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the The Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A430B, Rule 430A 430B information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein, in each case, as required to be performed or satisfied by it at or before such Closing Date; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Preliminary Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Xxxxxx LLP, counsel for the favorable opinionCompany, an opinion and a negative assurance letter, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Xxxxx Xxxxxxx shall have furnished to the Underwriters such counsel’s written opinion, as intellectual property counsel to the Company, addressed to the Representative and dated as of the Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Companyapplicable, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) The Representative shall have received on the Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Representative, an opinion, addressed to the Representative and dated as of such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of such documents as they request for enabling them to pass upon such matters.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the The Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course filed a Notification: Listing of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed Additional Shares with the purchase or offering of the Shares as contemplated herebyNASDAQ Global Market and received no objection thereto.
(l) On the Firm Shares Closing Date, RESERVED
(m) FINRA shall have confirmed that it has not raised any objection with respect no objections to the fairness and reasonableness of the underwriting terms and agreements arrangements in connection with the Offeringissuance and sale of the Shares.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance, and will commence trading on the NASDAQ Capital Market [at the Firm Shares Closing Date].
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
(n) The Company shall have filed the Articles Supplementary with the SDAT.
(o) The Company shall have delivered to the Representative a copy of the duly authorized and executed Operating Partnership Agreement Amendment.
Appears in 1 contract
Samples: Underwriting Agreement (Medalist Diversified REIT, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Securities are subject to each of the following terms and conditions:
(a) Notification that the The Registration Statement has become effective shall have been received by the Representative be effective, and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A430B, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company Company, in their capacities as such, to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been but was not set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from each of Zysman, Aharoni, Xxxxx and Xxxxxxxx & Worcester LLP and Zysman, Aharoni, Xxxxx & Co, counsels for the favorable opinionCompany, opinions, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel in forms acceptable to the Representative. In addition, the Company’s U.S. counsel will provide a statement, substantially in a form acceptable to the Representative. To the extent deemed advisable by such counsel, such counsel may rely as to matters of fact on certificates of responsible officers of the Company and substance reasonably public officials and on the opinions of other counsel satisfactory to the Representative as to matters which are governed by laws other than the laws of the State of New York, the State of Nevada and the Federal laws of the United States; provided that such counsel shall state that in their opinion that the Underwriters and they are justified in relying on such other opinions. Copies of such certificates and other opinions shall be furnished to the Representative and counsel for the Underwriters.
(g) On each Closing Date, the The Representative shall have received on each Closing Date from the favorable tax outside intellectual property counsel for the Company, an opinion, addressed to the Representative and dated as of such Closing Date, in a form acceptable to the Representative.
(h) The Representative shall have received on each Closing Date a certificate addressed to the Representative and dated such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLCthe Company’s regulatory affairs officer, in the form attached to this Agreement as tax Exhibit B.
(i) The Representative shall have received on each Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the CompanyRepresentative, in form an opinion, addressed to the Representative and substance dated such Closing Date, with respect to such matters as the Representative may reasonably satisfactory require, and the Company shall have furnished or provided access to such counsel such documents as they request for the Underwritersenabling them to pass upon such matters.
(hj) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their its counsel.
(ik) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(jl) The Firm Shares, Warrant Shares and the Option Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuanceCM and Tel Aviv Stock Exchange and for trading on Frankfurt Stock Exchange.
(km) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding proceeding, foreign or domestic, affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(ln) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Securities.
(mo) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
(p) The Representative shall have received a copy of the warrant agreement executed by the Company and American Stock Transfer & Trust Company, LLC, in a form acceptable to the Representative (the “Warrant Agreement”).
Appears in 1 contract
Samples: Underwriting Agreement (Pluristem Therapeutics Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters Underwriter to purchase the Shares Securities are subject to each of the following terms and conditions:
(a) Notification that the The Registration Statement has become shall be effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeUnderwriter. If the Company has elected to rely upon Rule 430ARules 430A or 430B, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule Rules 430A or 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Underwriter of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.Rules 430A or 430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each the Closing Date as if made on such date, except for representations and warranties that speak solely as of an earlier date, which shall be true and correct as of such earlier date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative Underwriter shall have received on each the Closing Date a certificate, addressed to the Representative Underwriter and dated such Closing Date, of the chief executive officer or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been but was not set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative Underwriter shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor Xxxx Xxxxx addressed to the Representative Underwriter and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, Underwriter 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 and the General Disclosure Package, and (ii) on each the Closing Date, a signed letter from the Auditor Xxxx Xxxxx addressed to the Representative Underwriter and dated the date of such Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative Underwriter 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 and the Prospectus.
(f) On each Closing Date, the Representative Xxxx Xxxxxxxx LLP shall have received furnished to the favorable Underwriter such counsel’s written opinion and negative assurance statement, addressed to the Underwriter and dated the Closing Date in substantially the form attached hereto as Exhibit B.
(g) Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx LLP shall have furnished to the Underwriter such counsel’s written opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as intellectual property counsel to the Company, addressed to the Underwriter and dated the Closing Date in substantially the form and substance reasonably satisfactory to attached hereto as Exhibit C.
(h) The Underwriter shall have received on the Closing Date from Xxxxxxx Procter LLP, counsel for the Underwriters.
(g) On each Closing DateUnderwriter, the Representative shall have received the favorable tax an opinion, addressed to the Underwriter and dated as of such Closing Date, with respect to such matters as the Underwriter may reasonably require, and the Company shall have furnished or provided access to such counsel of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, such documents as tax counsel they request for the Company, in form and substance reasonably satisfactory enabling them to counsel for the Underwriterspass upon such matters.
(hi) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Underwriter and their its counsel.
(ij) The Representative Underwriter shall have received copies of the Lock-up Up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jk) The Shares and Warrant Shares shall have been approved for listing on the The NASDAQ Capital Market, subject only to official notice of issuance.
(kl) Subsequent to The Underwriter shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth in or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ Underwriter’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(lm) On the Firm Shares Closing DateIf a filing has been made with FINRA, FINRA shall have confirmed that it has not raised any no objection with respect to the fairness and reasonableness of the underwriting terms and agreements arrangements in connection with the Offeringissuance and sale of the Securities.
(mn) The Underwriter shall have received on the Closing Date a certificate addressed to the Underwriter and dated such Closing Date, of the Company’s Vice President, Regulatory Affairs and Compliance, in a form reasonably satisfactory to the Underwriter with respect to the regulatory affairs of the Company.
(o) The Underwriter shall have received on and as of the Closing Date a Secretary’s Certificate of the Company in a form reasonably satisfactory to the Underwriter.
(p) The Underwriter shall have received on and as of the Closing Date a certificate of the Chief Financial Officer of the Company in a form reasonably satisfactory to the Underwriter.
(q) The Company shall have furnished or caused to be furnished to the Representative Underwriter such further customary certificates or documents as the Representative Underwriter shall have reasonably requested.
(r) The Company shall have duly and validly executed and delivered the warrant agreement in respect of the Warrants, which shall have been countersigned by the warrant agent in respect of the Warrants, and a copy of such warrant agreement shall have been delivered to the Underwriter (the “Warrant Agreement”).
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective and shall have been received by the Representative Representative, and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement Agreement, and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A430B, Rule 430A 430B information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representative, 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Bxxxx & MxXxxxxx LLP, counsel for the favorable opinionCompany, an opinion and a negative assurance letter, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the The Representative shall have received on each Closing Date from Sterne, Kessler, Gxxxxxxxx & Fox P.L.L.C., intellectual property counsel to the favorable tax Company, an opinion, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) The Representative shall have received on each Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Representative, an opinion, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to the Representative.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to The Company shall have filed a Notification: Listing of Additional Shares with The Nasdaq Stock Market and received no objection thereto.
(l) The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could would reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could would reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could would reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the several Underwriters under this Agreement are several hereunder to purchase and not joint. The respective obligations pay for the Securities as provided herein at the Closing Time shall be subject, in the Representative’s discretion, to the condition that all representations and warranties and other statements of the Underwriters to purchase the Shares are subject to each Company herein and in any certificates of any officer of the Company or any subsidiary delivered pursuant to the provisions hereof, are, at and as of such Closing Time, true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following terms and additional conditions:
(a) Notification that the The Registration Statement has become effective shall have been received was filed by the Representative Company with the Commission and has been declared effective not earlier than three years prior to the date hereof. Each preliminary prospectus and the Prospectus shall have been timely filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the 1933 Act Regulations and in accordance with Section 4(a3(a) hereof (or a post-effective amendment shall have been filed and declared effective in accordance with the requirements of Rule 430B), if the Company has elected to rely on Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Eastern time, on the date of this Agreement Agreement, no stop order suspending the effectiveness of the Registration Statement or any part thereof or post-effective amendment thereto shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated and all requests for additional information on the part of the Commission shall have been complied with to the Representative’s reasonable satisfaction, the Final Term Sheet and any other material required to be filed by the Company pursuant to Rule 433(d) of under the Rules 1933 Act shall have been timely filed with the Commission within the applicable time periods prescribed in accordance with such rulefilings by Rule 433, and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) No order preventing or suspending At the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary 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 which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing DateTime, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLCXxxx Xxxxxx, as counsel to the CompanyPC, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit A hereto and to such further effect as counsel to the Underwriters may reasonably request. Such counsel may also state that, insofar as either such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials.
(hc) All proceedings taken in connection with At the sale Closing Time, the Representative shall have received the opinion, dated as of Closing Time, of Xxxxxxxxx & Xxxxxxx LLP, counsel for the Underwriters. The opinion shall address the matters as the Representative may reasonably request. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the Firm Shares State of New York, Delaware and the Option Shares Federal law of the United States, upon the opinions of counsel satisfactory to the Representative. Such counsel may also state that, insofar as herein contemplated such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials.
(d) On the date of this Agreement and at the Closing Time, Xxxxx shall be reasonably satisfactory have furnished to the Representative a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to the Representative Representative, containing statements and their counsel.
(i) The Representative shall have received copies information of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only type ordinarily included in accountants “comfort letters” to official notice of issuance.
(k) Subsequent underwriters with respect to the execution financial statements of the Company and delivery of this Agreement or, if earlier, the dates as of which certain financial information is given contained in the Registration Statement, the General Disclosure Package or and the Prospectus: , provided, that the letter delivered as of the Closing Time shall use a “cut-off” date no more than two business days prior to the Closing Time.
(e) The Representative shall have received a certificate of the Chief Executive Officer of the Company and of the Chief Financial Officer of the Company, dated as of Closing Time, to the effect that (i) no Material Adverse Effect has occurred; (ii) the representations and warranties in this Agreement are true and correct with the same force and effect as though made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time and (iv) the conditions specified in Section 6(a) hereof have been satisfied.
(f) Since the execution of this Agreement, there shall not have been any material change decrease in or withdrawal of the capital stock rating of any securities of the Company or any material change in the indebtedness of its subsidiaries by any “nationally recognized statistical rating organization” (other than in the ordinary course as defined for purposes of businessSection 3(a)(62) of the Transaction Entities, 1934 Xxx) xx which the Company has notice or any notice given of any intended or potential decrease in or withdrawal of any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(iig) except as set forth or contemplated by Prior to the Registration StatementClosing Time, the General Disclosure Package or Company, the Prospectustransfer agent for the Securities and DTC shall have executed and delivered a Letter of Representations, no material oral or written agreement or other transaction dated the Closing Time, and the Securities shall be eligible for clearance, settlement and trading through the facilities of DTC.
(h) The Preferred Stock qualifies for the exemption from filing in FINRA Rule 5110(b)(7)(B) for non-convertible preferred securities rated by a nationally recognized statistical rating organization in one of its top four generic rating categories.
(i) At Closing Time, the Securities shall have been entered into by approved for listing on the Transaction Entities that is not in Nasdaq under the ordinary course symbol “DCOMP,” subject only to official notice of business or that could reasonably be expected to result in a material reduction in the future earnings issuance, and upon consummation of the Transaction Entities, offering contemplated hereby the Company will be in compliance with the designation and maintenance criteria applicable to Nasdaq issues.
(iiij) no loss or damage (whether or not insured) The Company shall have complied with the provisions hereof with respect to the property furnishing of prospectuses, in electronic or printed format, on the Transaction Entities New York business day next succeeding the date of this Underwriting Agreement.
(k) In the event that a Rule 462(b) Registration Statement is filed in connection with the offering contemplated by this Underwriting Agreement, such Rule 462(b) Registration Statement shall have been sustained that had or could reasonably be expected to have a Material Adverse Effectfiled with the Commission, (iv) no legal or governmental actionin compliance with Rule 462(b), suit or proceeding affecting on the Transaction Entities or any date of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Underwriting Agreement and shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated herebybecome effective automatically upon such filing.
(l) On Prior to Closing Time, the Firm Shares Closing Date, FINRA Designation for the Securities shall have confirmed that it has not raised any objection been duly filed with respect to the fairness and reasonableness Secretary of State of the underwriting terms State of Delaware and agreements shall be in connection with the Offeringfull force and effect.
(m) At the Closing Time, the Company will have filed a Registration Statement on Form 8-A with the Commission to register the Securities pursuant to Section 12(b) of the Exchange Act. The Company has filed an application to list the Preferred Stock on Nasdaq, and the Company has not received any notification that the Commission or Nasdaq is contemplating terminating such registration or listing.
(n) On the date of this Agreement and at the Closing Time, the Representative shall have received a certificate executed by the Chief Financial Officer of the Company, in form and substance satisfactory to the Representative and attached hereto as Schedule IV.
(o) In the event that the Underwriters exercise their option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and in any certificates furnished or caused by the Company and any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery, the conditions set forth in Sections 6(a), (e), (f), (i), (h) and (m) hereof shall be satisfied at each Date of Delivery and, at the relevant Date of Delivery, the Representative shall have received:
(i) A favorable opinion, dated as of such Date of Delivery, of Xxxx Xxxxxx, PC, counsel for the Company, in form and substance reasonably satisfactory to be counsel for the Underwriters and otherwise to the same effect as the opinion required by Section 6(b) hereof.
(ii) A favorable opinion, dated as of such Date of Delivery, of Xxxxxxxxx & Xxxxxxx LLP, counsel for the Underwriters, in form and substance reasonably satisfactory to the Underwriters and otherwise to the same effect as the opinion required by Section 6(c) hereof.
(iii) A letter from Xxxxx in form and substance satisfactory to the Representative and dated as of such Date of Delivery, substantially in the same form and substance as the letter furnished to the Representative pursuant to Section 6(d) hereof, except that the “cut-off date” in the letter furnished pursuant to this paragraph shall be a date not more than two days prior to such further customary certificates Date of Delivery.
(iv) A certificate of the Chief Executive Officer of the Company and of the Chief Financial Officer of the Company, dated as of such Date of Delivery, to the effect that the certificate delivered at the Closing Time pursuant to Section 6(e) hereof remains true and correct as of such Date of Delivery.
(v) A certificate of the Chief Financial Officer of the Company, dated as of such Date of Delivery, to the effect that the certificate delivered at the Closing Time pursuant to Section 6(n) hereof remains true and correct as of such Date of Delivery.
(vi) There shall not have occurred prior to the Date of Delivery any of the events, circumstances or occurrences set forth in Section 9(a) hereof.
(p) At the Closing Time and at each Date of Delivery (if any), counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be in form and substance satisfactory to the Representative and counsel for the Underwriters.
(q) If any condition specified in this Section 6 shall not have reasonably requestedbeen satisfied when and as required to be satisfied or shall not have been waived by such time, this Agreement may be terminated by the Underwriters by notice to the Company at any time on or prior to the Closing Time. In addition, such termination shall be subject to Section 4 hereof, and Sections 1, 7, 8 and 9 hereof shall survive any such termination and remain in full force and effect.
Appears in 1 contract
Samples: Underwriting Agreement (Dime Community Bancshares Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A430B, Rule 430A 430B information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the any certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have such person has carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their such person’s opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i1) the General Disclosure Package, nor (ii2) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with on the execution of this Agreement Firm Shares Closing Date a signed letter from the Auditor addressed to the Representative and dated the date of this Agreementthe Firm Shares Closing Date, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each Option Shares Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Option Shares Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 Statement, the General Disclosure Package and the Prospectus, provided, that such letters delivered on each Option Shares Closing Date (if any), shall use a “cut-off” date no more than two business days prior to such Option Shares Closing Date (if any).
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Xxxxxx & Xxxxxxx LLP, counsel for the favorable opinionCompany, an opinion and negative assurance letter, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersReserved.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Samples: Underwriting Agreement (Oncternal Therapeutics, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules) shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement shall be true and correct, and the representations and warranties of the Company contained in the certificates delivered pursuant to Section 3(d) shall be true and correct in all material respects, when made and on and as of each Closing Date as if made on such datedate (provided, that each representation and warranty that contains a materiality qualifier shall be true and correct in all respects). The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative Underwriters and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct in all material respects when made and are true and correct as of such Closing DateDate (provided, that each representation and warranty that contains a materiality qualifier shall be true and correct in all respects); (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) (1) as of the Effective Date the Registration Statement and did not or will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, (2) as of the date thereof or as of the date hereof the Prospectus did not includecontain and does not contain 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, and (3) as of the Applicable Time, neither (ix) the General Disclosure Package, nor (iiy) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and did not omit or 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 (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Underwriters and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, 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 and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative 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 and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Exxxx & Vxx Xxxxxx LLP, counsel for the favorable opinionCompany, an opinion and negative assurance letter, addressed to the Underwriters and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLCsubstantially in the form attached hereto as Exhibit B (which shall be subject to customary assumptions, as counsel to the Companyexceptions, in form limitations and substance reasonably satisfactory to counsel for the Underwritersqualifications).
(g) On each Closing Date, the The Representative shall have received on each Closing Date from Pillsbury Wxxxxxxx Xxxx Xxxxxxx LLP, counsel for the favorable tax Underwriters, an opinion, addressed to the Representative and dated as of such Closing Date, of Kxxxxx Voekler Cxxxxxxxxx & Fxxxx PLCwith respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel such documents as tax counsel they request for the Company, in form and substance reasonably satisfactory enabling them to counsel for the Underwriterspass upon such matters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV III hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital MarketNYSE MKT, subject only to official notice of issuance.
(k) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any subsidiary or any material change in the indebtedness (other than in the ordinary course of businessbusiness consistent with past practice) of the Transaction EntitiesCompany or any of its subsidiaries, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company or its subsidiaries that is not in the ordinary course of business consistent with past practice or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company or any subsidiary shall have been sustained that had or could reasonably be expected to have a Material Adverse Effectbe material to the Company or any subsidiary, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company, any of its subsidiaries or any of their respective properties that is material to the Transaction Entities Company or any of its subsidiaries or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement, and the obligation of the Underwriters to purchase the Firm Shares or Option Shares, as the case may be, may be terminated by the Representative by notice to the Company at any time at or prior to Closing Date, and, except for an intentional or willful breach of this Agreement, such termination shall be without liability of any party to any other party except as provided in Section 4(b); provided, however, that Sections 4(b), 5, 6, 7 and 9 shall survive any such termination and remain in full force and effect.
Appears in 1 contract
