Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Securities as provided herein shall be subject to: (i) the accuracy of the representations and warranties of the Company herein contained, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and (iv) each of the following additional conditions. (a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction. (b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading. (c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative. (d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business. (e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate. (f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter. (g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX. (h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby. (i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV. (j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible. (k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements. (l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company. (m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested. (n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated. (o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 4 contracts
Samples: Underwriting Agreement (Autozi Internet Technology (Global) Ltd.), Underwriting Agreement (Autozi Internet Technology (Global) Ltd.), Underwriting Agreement (Autozi Internet Technology (Global) Ltd.)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Securities Firm Shares and Firm Warrants or any Option Securities, as the case may be, as provided herein shall be subject to: (i) the accuracy of the representations and warranties of the Company herein contained, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters Representative or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and (iv) each of the following additional conditions. For purposes of this Section 7, the terms “Closing Date” and “Closing” shall refer to the Closing Date for the Firm Shares and Firm Warrants or Option Securities, as the case may be, and each of the foregoing and following conditions must be satisfied as of each Closing.
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern TimeNew York City time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the UnderwritersRepresentative. If the Company shall have elected to rely upon Rule 430A under the Securities Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ Representative’s satisfaction; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Underwriters Representative shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ Representative’s reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ Representative’s reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters Representative shall have receivedreceived the favorable written opinions, in each case in form satisfactory to the Underwriters Representative and Underwriters’ counsel (and in the case of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and ), including customary negative assurance letter from DLA Piper UK language), of (i) Xxxxxx Xxxxxxx & Xxxxx LLP, U.S. the securities legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters; (ii) Fish & Xxxxxxxxxx LLP, and (iii) legal opinions from Xxx Xxx Law Offices, PRC patent legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined Date and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel addressed to the Underwriters; and (iii) Xxxxxxxxxxxx O’Xxxxxx Xxxxxxx Kindness PLLC, shall have furnished to trademark legal counsel for the Representative its (i) written opinionCompany, dated as of the Closing Date and addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters Representative shall have received certificates of each of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”)Company, substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Rules and Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters Representative shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) PMB Xxxxx Xxxxxxx as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters Representative and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Securities Act and all applicable Regulationsrules and regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(hf) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares capital stock or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the UnderwritersRepresentative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(ig) The Underwriters Representative shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IVII.
(jh) The Shares Common Stock and the Warrants are registered under the Exchange Act and, as of the Closing Date, the Shares Common Stock and the Warrants shall be listed and admitted and authorized for trading on the Nasdaq Global NASDAQ Capital Market and satisfactory evidence of such action shall have been provided to the UnderwritersRepresentative. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares Common Stock or the Warrants under the Exchange Act or delisting or suspending the Shares Common Stock or the Warrants from trading on the Nasdaq Global NASDAQ Capital Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global NASDAQ Capital Market is contemplating terminating such registration or listing. The Firm Shares Securities shall be DTC eligible.
(ki) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements. In addition, the Company shall, if requested by the Representative, make or authorize the Underwriters’ Counsel to make on the Company’s behalf an Issuer Filing with the FINRA Corporate Financing Department pursuant to FINRA Rule 5110 with respect to the Registration Statement and pay all filing fees required in connection therewith.
(lj) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(mk) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(ol) The Company is shall have entered into a warrant agreement (the “Warrant Agreement”) with Nevada Agency and Trust Company, as warrant agent for the Warrants. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required to apply for cybersecurity review with by this Agreement, or if any of the CAC with respect certificates, opinions, written statements or letters furnished to the Company’s proposed overseas listing Representative or to Underwriters’ Counsel pursuant to this Section 7 shall not be reasonably satisfactory in form and substance to the Revised Cybersecurity Review MeasuresRepresentative and to Underwriters’ Counsel, all obligations of the Underwriters 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 shall be confirmed promptly thereafter in writing.
Appears in 4 contracts
Samples: Underwriting Agreement (COPsync, Inc.), Underwriting Agreement (COPsync, Inc.), Underwriting Agreement (COPsync, Inc.)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder, as to purchase and pay for the Securities as provided herein Shares to be delivered at each Time of Delivery, shall be subject to: (i) subject, in their discretion, to the accuracy of the condition that all representations and warranties and other statements of the Company herein contained, as and of the date hereof Selling Stockholder herein are, at and as of such Time of Delivery, true and correct, the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by condition that the Company and the Selling Stockholder shall have performed all of its their respective obligations hereunderhereunder theretofore to be performed, and (iv) each of the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time periodperiod prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or Statement, any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure PackagePreliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings proceeding for the issuance of such an order that purpose shall have been initiated or threatenedthreatened by the Commission; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; and all requests for additional information on the part of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the UnderwritersRepresentatives’ reasonable satisfaction.;
(b) The Underwriters shall not have reasonably determinedMintz, Levin, Cohn, Ferris, Glovsky and advised the CompanyPopeo, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLPP.C., U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinionUnderwriters such opinion or opinions, addressed dated such Time of Delivery, with respect to this Agreement, the Registration Statement, the Pricing Disclosure Package, the Prospectus and other related matters as the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Officesrequest;
(c) Garrigues, PRC S.L.P., Spanish counsel to the Underwriters, shall have furnished to the Representative its written opinionUnderwriters such opinion or opinions, addressed dated such Time of Delivery, with respect to this Agreement, the Registration Statement, the Pricing Disclosure Package, the Prospectus and other related matters as the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.reasonably request;
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”)Squire, substantially in the form attached hereto as Annex I and dated as of the Closing DateXxxxxxx & Xxxxxxx L.L.P., to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect U.S. counsel to the Company within and the meaning of the Act and all applicable RegulationsSelling Stockholder, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the CompanyUnderwriters their written opinion, dated the respective dates such Time of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such informationDelivery, in form and substance reasonably satisfactory to the RepresentativeUnderwriters, substantially with respect to the matters set forth in the form attached hereto as Xxxxx XXX.Annex I-A hereto;
(he) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date orXxxxx Xxxxxx Xxxx, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects Internal Legal Counsel of the Company, taken as a whole, including but not limited shall have furnished to the occurrence Underwriters a written opinion, dated such Time of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of whichDelivery, in any such case described above, is, in the reasonable judgment of form and substance reasonably satisfactory to the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.matters set forth in Annex I-B hereto;
(lf) No action shall have been taken and no statuteXxxxxx Xxxxx Xxxxxxx xx Xxxxxxx, ruleInternal Counsel to the Selling Stockholder, 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished to the Underwriters a written opinion, dated such Time of Delivery, in form and substance reasonably satisfactory to the Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.matters set forth in Annex II hereto;
Appears in 3 contracts
Samples: Underwriting Agreement (Telvent Git S A), Underwriting Agreement (Telvent Git S A), Underwriting Agreement (Telvent Git S A)
Conditions of Underwriters’ Obligations. The obligations obligation of the Underwriters each Underwriter to purchase and pay for the Securities Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as provided herein shall be to which it exercises its right to purchase under Section 5 on an Option Closing Date, is subject to: (i) at the date hereof, the Closing Date and any Option Closing Date to the continuing accuracy and fulfillment of the representations and warranties of the Company herein containedand the Selling Shareholder, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company and the Selling Shareholder of its their covenants and obligations hereunder, and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective Preliminary Prospectus and all necessary regulatory and listing approvals the Prospectus shall have been received not later than 5:30 filed with the SEC pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. The Company shall have filed any material required to be filed by the Company with the SEC in the manner and within the time period required by Rule 433 of the Regulations, including any Issuer Free Writing Prospectus and any Other Free Writing Prospectus.
(b) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the SEC in compliance with Rule 462(b) by 10:00 P.M., Eastern TimeWashington D.C. time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected at the time of filing either pay to rely upon the SEC the filing fee for the Rule 430A 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b.
(c) within the applicable time period; and, at On or prior to the Closing Date and or any Option Closing Date, as the actual time of the Closingcase may be, no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including any document incorporated by reference therein), the 462(b) Registration or any part thereof, post-effective amendment to the Registration Statement or the sale of any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus Shares shall have been issued; issued under the Act or any state or foreign securities law, and no proceedings for the issuance of such an order that purpose shall have been initiated or threatened; all requests shall be pending or, to the Representative’s knowledge or the knowledge of the Commission Company, shall be contemplated by the SEC or by any authority in any state in which the Representative offers the Shares. Any request on the part of the SEC or any state or foreign securities authority for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of counsel for the Underwriters’ satisfaction.
(bd) The Underwriters shall not have reasonably determinedAll corporate proceedings and other matters incident to the authorization, form and advised validity of this Agreement, the Company, that Shares and the form of the Registration Statement, the General Disclosure Package and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriters. The Company and the Selling Shareholder shall have furnished to such counsel all documents and information that they may have reasonably requested to enable them to pass upon such matters. The Representative shall have received from the Underwriters’ counsel, Xxxx Xxxxxxxxxx & Xxxxxxxxx, LLP, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Representative individually and as representative of the Underwriters, which opinion shall be satisfactory in all respects to the Representative.
(e) The Representative shall have received a copy of an executed Lock-up Agreement from each of the persons listed on Schedule IV hereto, and the Company shall have issued appropriate stop transfer instructions to the transfer agent and shall have delivered a copy of such instructions to the Representative.
(f) On the Closing Date and any Option Closing Date, there shall have been delivered to the Representative the opinion of Xxxxxxx Xxxxxxx & Xxxxxx PLL, counsel for the Company and the Selling Shareholder, dated as of such date and addressed to the Representative individually and as representative of the Underwriters to the effect set forth in Exhibit B hereto or to such effect as is otherwise reasonably satisfactory to the Representative.
(g) At the Closing Date and any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Disclosure Package and the Prospectus and any amendments or supplements thereto shall contain all statements that are required to be stated therein in accordance with the Act and Regulations shall conform to the requirements of the Act and the Regulations in all material respects, and none of the Registration Statement nor any post-effective amendment thereto, the Disclosure Package or the Prospectus, Prospectus and any amendments or supplements thereto shall contain any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of a material fact which, in the Underwriters’ reasonable opinion, is material, or omits omit to state a any material fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein therein, in light of the circumstances in which they are made, not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, ; (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for since the Company, dated respective dates as of which information is given in the Closing Date Registration Statement, the Disclosure Package and addressed to the UnderwritersProspectus and any amendments or supplements thereto, and (iii) legal opinions from Xxx Xxx Law Officesexcept as otherwise stated therein, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion there shall have been provided to no material adverse change in the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer Business Conditions of the Company (or the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions Subsidiaries from that set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businessestherein, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, arising in the ordinary course of business; (viii) no stop order suspending since the effectiveness respective dates as of which information is given in the Registration Statement Statement, the Disclosure Package and the Prospectus or any amendment thereof has been issued and no proceedings therefor or supplement thereto, there shall have been initiated no event or threatened transaction, contract or agreement entered into by the Commission, (vi) there are no pro forma Company or any of the Subsidiaries other than in the ordinary course of business and as adjusted financial statements that are required to be included set forth in the Registration Statement and Statement, the Prospectus pursuant Disclosure Package or the Prospectus, that has not been, but would be required to be, set forth in the Regulations which are not so includedRegistration Statement, and the Disclosure Package or the Prospectus; (viiiv) subsequent to since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Disclosure Package and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or any of the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement the Disclosure Package or the Prospectus and which would have a Material Adverse Effect; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or any of the Subsidiaries that would be required to be set forth in the Disclosure Package or the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto other than as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulationsset forth therein, and stating, except as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given set forth in the Prospectus, as no proceedings (other than proceedings pending before a public utilities commission on the date hereof) shall be pending or threatened against or directly affecting the Company or any of the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letterMaterial Adverse Effect.
(gh) On The Representative shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company dated, as of the date of this Agreement and on the Closing Date or Option Closing Date, as the case may be, and addressed to the Representative individually and as representative of the Underwriters to the effect that (i) the representations and warranties of the Company in this Agreement are true and correct, as if made at and as of the Closing Date or the Option Closing Date, as the case may be, and that the Company has complied with all the agreements, fulfilled all the covenants and satisfied all the conditions on its part to be performed, fulfilled or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any amendments or supplements thereto, and the conditions set forth in Section 9 hereof have been satisfied.
(i) At the time this Agreement is executed and at the Closing Date and any Option Closing Date, as the case may be, each of ParenteBeard LLC and Xxxx & Associates LLP shall have furnished to the Representative, a certificate Representative on behalf of the Underwriters, at the request of the Company, letters, dated the respective dates of delivery thereof thereof, and addressed to the Representative on behalf of the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the RepresentativeRepresentative in all respects (including, substantially without limitation, the non-material nature of the changes or decreases, if any, referred to in the form attached hereto as Xxxxx XXX.clause (iii) below):
(hi) Subsequent confirming it is an independent certified public accounting firm within the meaning of the Act and the Regulations, and stating that the section of the Registration Statement under the caption “Experts” is correct insofar as it relates to the execution and delivery of this Agreement and prior to the Closing Date orit;
(ii) stating that, if earlierin its opinion, the dates as consolidated financial statements, schedules and notes of which information is given the Company audited by it and included in the Registration Statement (exclusive comply as to form in all material respects with the applicable accounting requirements of any amendment thereof) the Act and the Prospectus Regulations;
(exclusive iii) for ParenteBeard LLC only, stating that, on the basis of any supplement theretospecified procedures, which included a reading of the latest available unaudited interim consolidated financial statements of the Company (with an indication of the date of the latest available unaudited interim financial statements), a reading of the minutes of the meetings of the shareholders and the Boards of Directors of the Company and the Subsidiaries and the Audit, Corporate Governance and Nominating, and Compensation Committees of such Boards and inquiries to certain officers and other employees of the Company and the Subsidiaries responsible for operational, financial and accounting matters and other specified procedures and inquiries, nothing has come to their attention that, except as specified in their letter, would cause them to believe (x) that at a specified date not more than five business days prior to the date of such letter, there shall not have been was any change in the Ordinary Shares capital stock or increase in long-term debt of the Company (other than increases that the Registration Statement disclosed have occurred or may occur), in each case, as compared with the amounts shown in the Company’s December 31, 2011 audited balance sheets or any change or development involving a change, whether or not arising from transactions later dated Company balance sheet included in the ordinary course Registration Statement or (y) that for the periods from and including January 1, 2012 to the date of business, in the business, condition (latest available unaudited financial or otherwise), results of operations, shareholders’ equity, properties or prospects statements of the Company, taken if any, there were any decreases, as a whole, including but not limited compared to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, corresponding periods in the effect of whichprior year, in any such case described aboveoperating income or total or per share amounts of net income, isexcept in all instances for changes, in decreases or increases that the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable Registration Statement discloses have occurred or inadvisable to proceed with the sale of Securities or Offering as contemplated herebymay occur.
(iiv) The Underwriters shall stating that they have received a lock-up agreement compared specific dollar amounts (or percentages derived from each Lock-Up Partysuch dollar amounts), duly executed numbers of shares and other numerical data and financial information set forth in the Registration Statement that have been reasonably specified by the applicable Lock-Up Party, Representative prior to the date of this Agreement (in each case substantially to the extent that such dollar amounts, percentages and other information is derived from the general accounting records subject to the internal controls of the Company’s or the Subsidiaries’ accounting systems, or has been derived directly from such accounting records by analysis or comparison or has been derived from other records and analyses maintained or prepared by the Company or the Subsidiaries) with the results obtained from the application of readings, inquiries and other appropriate procedures set forth in the form attached letter, and found them to be in agreement. All financial statements and schedules included in material incorporated by reference into the Prospectus shall be deemed included in the Registration Statement for purposes of this subsection.
(v) provided, that the letter delivered on the Closing Date or the Option Closing Date, as Annex IVthe case may be, shall use a “cut-off” date no more than five business days prior to such Closing Date or such Option Closing Date, as the case may be.
(j) The Shares are registered under All corporate and other proceedings and other matters incident to the Exchange Act andauthorization, as form and validity of this Agreement and the form of the Closing Date, Registration Statement and Prospectus and all other legal matters related to this Agreement and the Shares transactions contemplated hereby shall be listed and admitted and authorized for trading on the Nasdaq Global Market and reasonably satisfactory evidence of such action shall have been provided in all respects to counsel to the Underwriters. The Company shall have taken no action designed furnished to terminate, or likely such counsel all documents and information that they shall have reasonably requested to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating enable them to pass upon such registration or listing. The Firm Shares shall be DTC eligiblematters.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) No action The Shares 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 included for listing on the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the CompanyNYSE Amex Equities.
(m) The Company At the Closing Date and any Option Closing Date, the Representative shall have been furnished the Underwriters such additional documents, information and Underwriters’ Counsel with such other certificates, opinions or documents certificates as they may shall have reasonably requested.
(n) . All such opinions, certificates, letters and documents shall be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Representative and the Underwriters’ counsel. The CSRC Company and the Selling Shareholder, respectively, shall have concluded furnish the CSRC Filings Representative with such conformed copies of such opinions, certificates, letters and published other documents as it shall reasonably request. If any condition to the filing results Underwriters’ obligations hereunder to be fulfilled prior to or at the Closing Date or any Option Closing Date, as the case may be, is not fulfilled, the Representative on January 2, 2024 in respect behalf of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC Underwriters may terminate this Agreement with respect to the Company’s proposed overseas listing pursuant Closing Date or such Option Closing Date, as applicable, or, if it so elects, waive any such conditions which have not been fulfilled or extend the time for their fulfillment. Any such termination shall be without liability of the Underwriters to the Revised Cybersecurity Review MeasuresCompany and Selling Shareholders.
Appears in 3 contracts
Samples: Underwriting Agreement (Gas Natural Inc.), Underwriting Agreement (Gas Natural Inc.), Underwriting Agreement (Gas Natural Inc.)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Securities Firm Shares as provided herein shall be subject to: (i) the accuracy of the representations and warranties of the Company herein contained, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters Representative or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and (iv) each of the following additional conditions. For purposes of this Section 7, the terms “Closing Date” and “Closing” shall refer to the Closing Date for the Firm Shares and each of the foregoing and following conditions must be satisfied as of each Closing.
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., P.M. Eastern Timetime, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the UnderwritersRepresentative. If the Company shall have elected to rely upon Rule 430A under the Securities Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ Representative’s satisfaction; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Underwriters Representative shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ Representative’s reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ Representative’s reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters Representative shall have receivedreceived legal opinions, in form satisfactory to the Underwriters Representative and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & RiegelsCampbells, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLPKxxxxxx & Cxxxxxx, P.C., the U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, ; and (iii) legal opinions from Xxx Xxx Deheng Law OfficesFirm, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined Date and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel addressed to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters Representative shall have received certificates of each of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”)Company, substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Rules and Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters Representative shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) Fxxxxxxx as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters Representative and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Securities Act and all applicable Regulationsrules and regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(hf) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares capital stock or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the UnderwritersRepresentative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(ig) The Underwriters Representative shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IVII.
(jh) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global NASDAQ Capital Market and satisfactory evidence of such action shall have been provided to the UnderwritersRepresentative. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global NASDAQ Capital Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global NASDAQ Capital Market is contemplating terminating such registration or listing. The Firm Shares, the Additional Shares and the Shares underlying the Representative’s Warrant shall be DTC eligible.
(ki) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(lj) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(mk) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(ol) The Company is and the Representative shall have entered into an escrow agreement with an entity reasonably satisfactory to both parties pursuant to which $600,000 in proceeds from the Offering shall be deposited in an escrow account for a period of thirty (30) months following the Closing Date for purposes of satisfying the initial $600,000 in indemnification obligations set forth in this Agreement. The Company shall pay the reasonable fees of the escrow agent. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required to apply for cybersecurity review with by this Agreement, or if any of the CAC with respect certificates, opinions, written statements or letters furnished to the Company’s proposed overseas listing Representative or to Underwriters’ Counsel pursuant to this Section 7 shall not be reasonably satisfactory in form and substance to the Revised Cybersecurity Review MeasuresRepresentative and to Underwriters’ Counsel, all obligations of the Underwriters 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 shall be confirmed promptly thereafter in writing.
Appears in 3 contracts
Samples: Underwriting Agreement (Farmmi, Inc.), Underwriting Agreement (Farmmi, Inc.), Underwriting Agreement (Farmmi, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to purchase the accuracy, when made and pay for the Securities as provided herein shall be subject to: (i) the accuracy on each Delivery Date, of the representations and warranties of the Company herein containedand the Operating Partnership contained herein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and (iv) to each of the following additional terms and conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been timely filed with the Commission in a timely fashion in accordance with Section 5(a)(i); the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters Company shall have been filed complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the Commission pursuant to Rule 424(b) within the applicable time perioddate hereof; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings proceeding or examination for the issuance of such an order purpose shall have been initiated or threatenedthreatened by the Commission; all requests and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with.
(b) All corporate proceedings and other legal matters incident to be included in the authorization, form and validity of this Agreement, the Shares, the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters’ reasonable opinion, is material, or omits and the Company shall have furnished to state a fact which, in the Underwriters’ reasonable opinion, is material such counsel all documents and is required information that they may reasonably request to be stated therein or necessary enable them to make the statements therein not misleadingpass upon such matters.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Hunton & Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, LLP shall have furnished to the Representative its (i) written opinionopinion and letter, as counsel to the Company, addressed to the Underwriters and dated the Closing Date or any Additional Closing such Delivery Date, substantially in the forms attached hereto as Exhibits B-1 and B-2.
(d) Hunton & Xxxxxxxx LLP shall have furnished to the case may beRepresentative its written tax opinion, and (ii) negative assurance letteras tax counsel to the Company, addressed to the Underwriters and dated the Closing Date or any Additional Closing such Delivery Date, substantially in the form attached hereto as Exhibit B-3.
(e) Xxxxxxx LLP shall have furnished to the Representative its written opinion, as Maryland counsel to the Company, addressed to the Underwriters and dated such Delivery Date, substantially in the form attached hereto as Exhibit B-4.
(f) The Representative shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated such Delivery Date, in form and substance satisfactory to the Representative, with respect to the issuance and sale of the Shares, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the case Representative may bereasonably require, and the Company shall have furnished to such counsel such documents and information as such counsel may they reasonably request to enable for the purpose of enabling them to pass on upon such matters. XxxXxxxxx Law Offices.
(g) At the time of execution of this Agreement and such Delivery date, PRC counsel to the Underwriters, Representative shall have furnished to received from the Company a certificate, dated the date hereof and such Delivery Date, of the Chief Financial Officer of the Company, substantially in the form attached hereto as Exhibit B-5.
(h) At the time of execution of this Agreement, the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may beshall have received from PricewaterhouseCoopers LLP a letter, in form and substance satisfactory to the Representative.
(d) The , addressed to the Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: date hereof (i) confirming that they are independent public accountants within the conditions set forth meaning of the Securities Act and are in subsection (a) compliance with the applicable requirements relating to the qualification of this Section 7 have been satisfiedaccountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof and as of the Closing Date(or, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company with respect to be performed matters involving changes or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to developments since the respective dates as of which specified financial information is given in the Registration Statement and the most recent Preliminary Prospectus, there has as of a date not been any Material Adverse Change or any development involving a prospective Material Adverse Changemore than three days prior to the date hereof), whether or not arising from transactions the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in the ordinary course of businessconnection with registered public offerings.
(ei) At each With respect to the letter of PricewaterhouseCoopers LLP referred to in the Closing Date, preceding paragraph and delivered to the Underwriters shall have received a certificate Representative concurrently with the execution of the Company signed by the Secretary of the Company this Agreement (the “Secretary’s Certificateinitial letter”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating Company shall have furnished to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received Representative a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letterbring-down letter”) as of each such dateaccountants, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, dated such Delivery Date (i) confirming that they are independent certified public accountants with respect to the Company within the meaning of the Securities Act and all are in compliance with the applicable Regulationsrequirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of such 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 five (5) three days prior to such datethe date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(gj) On The Representative shall have received from the Company, on behalf of itself and the Operating Partnership (in the Company’s capacity as general partner of the Operating Partnership), a certificate, dated such Delivery Date, of the Chief Executive Officer and Chief Financial Officer of the Company stating that:
(i) The representations, warranties and agreements of the Company and the Operating Partnership in Section 1 are true and correct on and as of such Delivery Date, and the Company and the Operating Partnership have complied with all the agreements contained herein and satisfied all the conditions on their part to be performed or satisfied hereunder at or prior to such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such officers, threatened; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth;
(i) neither the Company nor any of its subsidiaries shall have sustained, since the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain latest audited financial date contained statements included or incorporated by reference in the Registration Statement and Prospectus most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (the “CFO Certificate”), providing “management comfort” with respect to ii) since such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), date there shall not have been any change in the Ordinary Shares capital stock or long-term debt of the Company or any of its subsidiaries or any change in or development involving a change, whether or not arising from transactions in affecting the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equityproperties, properties management, business or prospects of the Company, Company and its subsidiaries taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described abovein clause (i) or (ii), is, in the reasonable judgment of the UnderwritersRepresentative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities public offering or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration delivery of the Shares under the Exchange Act or delisting or suspending the Shares from trading being delivered on such Delivery Date on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangementsin the manner contemplated in the Prospectus.
(l) No action Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been taken and no statute, rule, regulation suspended or order materially limited or the settlement of such trading generally shall have been enacted, adopted materially disrupted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court minimum prices shall have been issued that wouldestablished on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or state authorities, (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such), as to make it, in case of each of clauses (i) through (iv), in the judgment of the Closing DateRepresentative, prevent impracticable or inadvisable to proceed with the issuance public offering or sale delivery of the Securities or materially Shares being delivered on such Delivery Date on the terms and adversely affect or potentially materially and adversely affect in the business or operations of manner contemplated in the CompanyProspectus.
(m) The Company New York Stock Exchange shall have furnished approved the Underwriters Shares for listing, subject only to official notice of issuance and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requestedevidence of satisfactory distribution.
(n) The CSRC Lock-Up Agreements, substantially in the form of Exhibit A, between the Representative and the persons set forth on Schedule 2, shall have concluded been delivered to the CSRC Filings Representative on or before the date of this Agreement, shall be in full force and published the filing results effect on January 2such Delivery Date. All opinions, 2024 letters, evidence and certificates mentioned above or elsewhere in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required this Agreement shall be deemed to apply for cybersecurity review be in compliance with the CAC with respect provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review MeasuresUnderwriters.
Appears in 3 contracts
Samples: Underwriting Agreement (Chatham Lodging Trust), Underwriting Agreement (Chatham Lodging Trust), Underwriting Agreement (Chatham Lodging Trust)
Conditions of Underwriters’ Obligations. The obligations obligation of the Underwriters each Underwriter to purchase and pay for the Securities Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as provided herein shall be to which it exercises its right to purchase under Section 5 on an Option Closing Date, is subject to: (i) at the date hereof, the Closing Date and any Option Closing Date to the continuing accuracy and fulfillment of the representations and warranties of the Company herein containedand each Selling Shareholder, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company and each Selling Shareholder of its their covenants and obligations hereunder, and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective Preliminary Prospectus and all necessary regulatory and listing approvals the Prospectus shall have been received not later than 5:30 filed with the SEC pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. The Company shall have filed any material required to be filed by the Company with the SEC in the manner and within the time period required by Rule 433 of the Regulations, including any Issuer Free Writing Prospectus and any Other Free Writing Prospectus.
(b) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the SEC in compliance with Rule 462(b) by 10:00 P.M., Eastern TimeWashington D.C. time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected at the time of filing either pay to rely upon the SEC the filing fee for the Rule 430A 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b.
(c) within the applicable time period; and, at On or prior to the Closing Date and or any Option Closing Date, as the actual time of the Closingcase may be, no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including any document incorporated by reference therein), the 462(b) Registration or any part thereof, post-effective amendment to the Registration Statement or the sale of any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus Shares shall have been issued; issued under the Act or any state or foreign securities law, and no proceedings for the issuance of such an order that purpose shall have been initiated or threatened; all requests shall be pending or, to the Representative’s knowledge or the knowledge of the Commission Company, shall be contemplated by the SEC or by any authority in any state in which the Representative offers the Shares. Any request on the part of the SEC or any state or foreign securities authority for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of counsel for the Underwriters’ satisfaction.
(bd) The Underwriters shall not have reasonably determinedAll corporate proceedings and other matters incident to the authorization, form and advised validity of this Agreement, the Company, that Shares and the form of the Registration Statement, the General Disclosure Package and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriters. The Company and each Selling Shareholder shall have furnished to such counsel all documents and information that they may have reasonably requested to enable them to pass upon such matters. The Representative shall have received from the Underwriters’ counsel, Squire, Xxxxxxx & Xxxxxxx L.L.P., an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Representative individually and as representative of the Underwriters, which opinion shall be satisfactory in all respects to the Representative.
(e) The Representative shall have received a copy of an executed Lock-up Agreement from each of the persons listed on Schedule III hereto, and the Company shall have issued appropriate stop transfer instructions to the transfer agent and shall have delivered a copy of such instructions to the Representative.
(f) On the Closing Date and any Option Closing Date, there shall have been delivered to the Representative the opinion of Xxxxxxx Xxxxxxx & Xxxxxx PLL, counsel for the Company and Selling Shareholders, dated as of such date and addressed to the Representative individually and as representative of the Underwriters to the effect set forth in Exhibit B hereto or to such effect as is otherwise reasonably satisfactory to the Representative.
(g) At the Closing Date and any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Disclosure Package and the Prospectus and any amendments or supplements thereto shall contain all statements that are required to be stated therein in accordance with the Act and Regulations shall conform to the requirements of the Act and the Regulations in all material respects, and none of the Registration Statement nor any post-effective amendment thereto, the Disclosure Package or the Prospectus, Prospectus and any amendments or supplements thereto shall contain any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of a material fact which, in the Underwriters’ reasonable opinion, is material, or omits omit to state a any material fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein therein, in light of the circumstances in which they are made, not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, ; (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for since the Company, dated respective dates as of which information is given in the Closing Date Registration Statement, the Disclosure Package and addressed to the UnderwritersProspectus and any amendments or supplements thereto, and (iii) legal opinions from Xxx Xxx Law Officesexcept as otherwise stated therein, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion there shall have been provided to no material adverse change in the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer Business Conditions of the Company (or the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions Subsidiaries from that set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businessestherein, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, arising in the ordinary course of business; (viii) no stop order suspending since the effectiveness respective dates as of which information is given in the Registration Statement Statement, the Disclosure Package and the Prospectus or any amendment thereof has been issued and no proceedings therefor or supplement thereto, there shall have been initiated no event or threatened transaction, contract or agreement entered into by the Commission, (vi) there are no pro forma Company or any of the Subsidiaries other than in the ordinary course of business and as adjusted financial statements that are required to be included set forth in the Registration Statement and Statement, the Prospectus pursuant Disclosure Package or the Prospectus, that has not been, but would be required to be, set forth in the Regulations which are not so includedRegistration Statement, and the Disclosure Package or the Prospectus; (viiiv) subsequent to since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Disclosure Package and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or any of the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement the Disclosure Package or the Prospectus and which would have a Material Adverse Effect; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or any of the Subsidiaries that would be required to be set forth in the Disclosure Package or the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto other than as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulationsset forth therein, and stating, except as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given set forth in the Prospectus, as no proceedings (other than proceedings pending before a public utilities commission on the date hereof) shall be pending or threatened against or directly affecting the Company or any of the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letterMaterial Adverse Effect.
(gh) On The Representative shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company dated, as of the date of this Agreement and on the Closing Date or Option Closing Date, as the case may be, and addressed to the Representative individually and as representative of the Underwriters to the effect that (i) the representations and warranties of the Company in this Agreement are true and correct, as if made at and as of the Closing Date or the Option Closing Date, as the case may be, and that the Company has complied with all the agreements, fulfilled all the covenants and satisfied all the conditions on its part to be performed, fulfilled or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any amendments or supplements thereto, and the conditions set forth in Section 9 hereof have been satisfied.
(i) At the time this Agreement is executed and at the Closing Date and any Option Closing Date, as the case may be, Xxxx & Associates LLP shall have furnished to the Representative, a certificate Representative on behalf of the Underwriters, at the request of the Company, letters, dated the respective dates of delivery thereof thereof, and addressed to the Representative on behalf of the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the RepresentativeRepresentative in all respects (including, substantially without limitation, the non-material nature of the changes or decreases, if any, referred to in the form attached hereto as Xxxxx XXX.clause (iii) below):
(hi) Subsequent confirming they are independent certified public accountants within the meaning of the Act and the Regulations, and stating that the section of the Registration Statement under the caption “Experts” is correct insofar as it relates to the execution and delivery of this Agreement and prior to the Closing Date orthem;
(ii) stating that, if earlierin their opinion, the dates as consolidated financial statements, schedules and notes of which information is given the Company audited by them and included in the Registration Statement (exclusive comply as to form in all material respects with the applicable accounting requirements of any amendment thereof) the Act and the Prospectus Regulations;
(exclusive iii) stating that, on the basis of any supplement theretospecified procedures, which included a reading of the latest available unaudited interim consolidated financial statements of the Company (with an indication of the date of the latest available unaudited interim financial statements), a reading of the minutes of the meetings of the shareholders and the Boards of Directors of the Company and the Subsidiaries and the Audit, Corporate Governance and Nominating, and Compensation Committees of such Boards and inquiries to certain officers and other employees of the Company and the Subsidiaries responsible for operational, financial and accounting matters and other specified procedures and inquiries, nothing has come to their attention that, except as specified in their letter, would cause them to believe (x) that at a specified date not more than five business days prior to the date of such letter, there shall not have been was any change in the Ordinary Shares capital stock or increase in long-term debt of the Company (other than increases that the Registration Statement disclosed have occurred or may occur), in each case, as compared with the amounts shown in the Company’s December 31, 2009 audited balance sheets or any change or development involving a change, whether or not arising from transactions later dated Company balance sheet included in the ordinary course Registration Statement or (y) that for the periods from and including January 1, 2010 to the date of business, in the business, condition (latest available unaudited financial or otherwise), results of operations, shareholders’ equity, properties or prospects statements of the Company, taken if any, there were any decreases, as a whole, including but not limited compared to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, corresponding periods in the effect of whichprior year, in any such case described aboveoperating income or total or per share amounts of net income, isexcept in all instances for changes, in decreases or increases that the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable Registration Statement discloses have occurred or inadvisable to proceed with the sale of Securities or Offering as contemplated herebymay occur.
(iiv) The Underwriters shall stating that they have received a lock-up agreement compared specific dollar amounts (or percentages derived from each Lock-Up Partysuch dollar amounts), duly executed numbers of shares and other numerical data and financial information set forth in the Registration Statement that have been reasonably specified by the applicable Lock-Up Party, Representative prior to the date of this Agreement (in each case substantially to the extent that such dollar amounts, percentages and other information is derived from the general accounting records subject to the internal controls of the Company’s or the Subsidiaries’ accounting systems, or has been derived directly from such accounting records by analysis or comparison or has been derived from other records and analyses maintained or prepared by the Company or the Subsidiaries) with the results obtained from the application of readings, inquiries and other appropriate procedures set forth in the form attached letter, and found them to be in agreement. All financial statements and schedules included in material incorporated by reference into the Prospectus shall be deemed included in the Registration Statement for purposes of this subsection.
(v) provided, that the letter delivered on the Closing Date or the Option Closing Date, as Annex IVthe case may be, shall use a “cut-off” date no more than five business days prior to such Closing Date or such Option Closing Date, as the case may be.
(j) The Shares are registered under All corporate and other proceedings and other matters incident to the Exchange Act andauthorization, as form and validity of this Agreement and the form of the Closing Date, Registration Statement and Prospectus and all other legal matters related to this Agreement and the Shares transactions contemplated hereby shall be listed and admitted and authorized for trading on the Nasdaq Global Market and reasonably satisfactory evidence of such action shall have been provided in all respects to counsel to the Underwriters. The Company shall have taken no action designed furnished to terminate, or likely such counsel all documents and information that they shall have reasonably requested to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating enable them to pass upon such registration or listing. The Firm Shares shall be DTC eligiblematters.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) No action The Shares 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 included for listing on the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the CompanyNYSE Amex Equities.
(m) The Company At the Closing Date and any Option Closing Date, the Representative shall have been furnished the Underwriters such additional documents, information and Underwriters’ Counsel with such other certificates, opinions or documents certificates as they may shall have reasonably requested.
(n) . All such opinions, certificates, letters and documents shall be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Representative and the Underwriters’ counsel. The CSRC Company and each Selling Shareholder, respectively, shall have concluded furnish the CSRC Filings Representative with such conformed copies of such opinions, certificates, letters and published other documents as it shall reasonably request. If any condition to the filing results Underwriters’ obligations hereunder to be fulfilled prior to or at the Closing Date or any Option Closing Date, as the case may be, is not fulfilled, the Representative on January 2, 2024 in respect behalf of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC Underwriters may terminate this Agreement with respect to the Company’s proposed overseas listing pursuant Closing Date or such Option Closing Date, as applicable, or, if it so elects, waive any such conditions which have not been fulfilled or extend the time for their fulfillment. Any such termination shall be without liability of the Underwriters to the Revised Cybersecurity Review MeasuresCompany and Selling Shareholders.
Appears in 3 contracts
Samples: Underwriting Agreement (Gas Natural Inc.), Underwriting Agreement (Gas Natural Inc.), Underwriting Agreement (Gas Natural Inc.)
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters to purchase and pay for the Designated Securities as provided herein shall be they have severally agreed to purchase under this Agreement on the Closing Date are subject to: (i) to the accuracy in all material respects of the representations and warranties of the Company herein contained, and the Guarantor contained in this Agreement as of the date hereof of this Agreement and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel accuracy in all material respects of the statements of the Company and the Guarantor made in any certificates pursuant to this Section 7 of any misstatement the provisions hereof delivered prior to or omissionconcurrently with such purchase, (iii) to the performance by the Company and the Guarantor of its their obligations hereunderunder this Agreement, and (iv) each of to the following additional further conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with Section 5(a) hereof; all filings (including, without limitation, the terms thereof and a form final term sheet prepared pursuant to Section 5(a) hereof) required by Rule 424(b) or Rule 433 of the Prospectus containing information relating to the description of the Securities Rules and the method of distribution and similar matters Regulations shall have been filed with made, and no such filings will have been made without the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time consent of the Closing, Representative(s); no stop order suspending the effectiveness of the Registration Statement or any part thereofamendment or supplement thereto, preventing or any amendment thereof, nor suspending or preventing the use of the General Disclosure PackagePreliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or the Prospectus, or suspending the qualification of the Designated Securities for offering or sale in any jurisdiction shall have been issued; no proceedings for the issuance of any such an order shall have been initiated or threatened; all requests no notice of objection of the Commission to use the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations shall have been received by the Company; and any request of the Commission for additional information (to be included in the Registration Statement, Statement or the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been disclosed to the Underwriters and complied with to the Underwriters’ satisfaction.
(b) The Underwriters No Underwriter shall not have reasonably determined, been advised by the Company or shall have discovered and advised disclosed to the Company, Company that the Registration Statement, the General Disclosure Package or the Prospectus, Prospectus or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, which in the opinion of the Underwriters’ reasonable opinion, or in the opinion of counsel to the Underwriters, is material, or omits to state a fact which, in the opinion of the Underwriters’ reasonable opinion, or in the opinion of counsel to the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) The At the Closing Date, the Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Companyreceived a certificate, dated as of the Closing Date. Each , of the opinion shall provide assurance to parties that Guarantor signed by the legal aspects principal financial or accounting officer of the transaction have been properly examined and deemed compliant Guarantor, certifying, with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided respect to the Underwriters with consent from such counsel. VCL Law LLPGuarantor, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated that at the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed subsequent to the Underwriters and dated the Closing Date or any Additional Closing Date, dates as the case may be, and the Company shall have furnished to such counsel such documents and of which information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially is given in the form attached hereto as Annex I and dated as of the Closing DateDisclosure Package, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued shall be in effect, and no proceedings therefor have been initiated for such purpose shall be pending before or threatened by the CommissionCommission (ii) there shall not have been any material adverse change in the financial condition, earnings or prospects of the Guarantor and its subsidiaries, considered as one enterprise, (viiii) there are shall not have been any downgrading in the rating of any debt securities or preferred stock of the Guarantor or debt securities or preferred stock unconditionally guaranteed by the Guarantor by Xxxxx’x Investor Services, Inc., Fitch Ratings Ltd. or Standard and Poor’s Corporation, or any public announcement that any such rating agency has under surveillance or review its rating of any debt securities or preferred stock of the Guarantor or debt securities or preferred stock unconditionally guaranteed by the Guarantor (other than an announcement with positive implications of a possible upgrading, and no pro forma or as adjusted financial statements that are required implication of a possible downgrading, of such rating), (iv) each of the Company and the Guarantor shall have complied with all agreements and satisfied all conditions on its respective part to be included in the Registration Statement and the Prospectus pursuant performed or satisfied hereunder at or prior to the Regulations which are not so includedClosing Date, and (viiv) subsequent to the respective dates representations and warranties of the Company and the Guarantor set forth in Section 1 above and in the applicable Underwriting Agreement, if any, are accurate in all material respects as though expressly made at and as of which information is given in the Registration Statement and the ProspectusClosing Date. In addition, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of at the Closing Date, the Underwriters shall have received a certificate dated as of the Closing Date of the Company signed by the Secretary a director of the Company (the “Secretary’s Certificate”)certifying, substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of with respect to the Company’s Board of Directors relating to , the Offering are matters set forth in full force and effect and have not been modified; (iiithis Section 6(c)(iv) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificatev).
(fd) On the date of this Agreement and on At the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as signed opinion or opinions of each such date, addressed to the Underwriters and in form and substance counsel reasonably satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning dated as of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letterClosing Date.
(ge) On At the Applicable Time, the Underwriters shall have received letters of accountants, ordinarily referred to as “comfort letters”, confirming information as specified in the applicable Underwriting Agreement and dated the date on which the Term Sheets and/or the Prospectus are dated, as applicable from those accountants of this Agreement and on the Guarantor or any of its subsidiaries as specified in the applicable Underwriting Agreement.
(f) At the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, letters of accountants dated as of the Closing Date, confirming information as specified in the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided comfort letters delivered pursuant to the Underwriters. The Company shall have taken no action designed to terminateSection 6(e) above, or likely to have the effect of terminating, the registration from those accountants of the Shares under Guarantor or any of its subsidiaries as specified in the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligibleapplicable Underwriting Agreement.
(kg) FINRA shall have confirmed that it has not raised any objection with respect At or prior to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent (i) the issuance or sale of public deed in respect to the Securities; and no injunction or order of any federal, state or foreign court Designated Securities shall have been issued that wouldregistered in the Madrid Mercantile Registry; and (ii) the announcement related to the issue of the Designated Securities shall have been published in the Official Gazette of the Mercantile Registry (Boletin Oficial del Registro Mercantil). If any of the conditions specified in this Section 6 or in Section 2 of the applicable Underwriting Agreement shall not have been fulfilled in all material respects when and as required by this Agreement to be fulfilled, as of this Agreement may be terminated by the Underwriters upon notice to the Company and the Guarantor at any time at or prior to the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice termination shall be without liability of acceptance and/or filing results published not having otherwise been rejectedany party to any other party except as provided in Section 7 herein. Notwithstanding any such termination, withdrawnthe provisions of Sections 8, revoked or invalidated9, 10, 14 and 16 herein shall remain in effect.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 3 contracts
Samples: Underwriting Agreement (Telefonica S A), Underwriting Agreement (Telefonica S A), Underwriting Agreement (Telefonica S A)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to purchase the accuracy, when made and pay for on the Securities as provided herein shall be subject to: (i) the accuracy Delivery Date, of the representations and warranties of the Company herein containedPartnership Parties contained herein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company Partnership Parties of its their respective obligations hereunder, and (iv) to each of the following additional terms and conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been timely filed with the Commission in a timely fashion in accordance with Section 5(a)(i) hereof; the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters Issuers shall have been filed complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the Commission pursuant to Rule 424(b) within the applicable time perioddate hereof; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or any amendment thereof, nor suspending or preventing the use of the General Disclosure Packageany Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings proceeding for the issuance of such an order purpose shall have been initiated or threatenedthreatened by the Commission; all requests any request of the Commission for inclusion of additional information (to be included in the Registration Statement, the General Disclosure Package, the any Preliminary Prospectus, any Issuer Free Writing or the Prospectus or otherwise) otherwise shall have been complied with with; and the Commission shall not have notified the Issuers of any objection to the Underwriters’ satisfactionuse of the form of the Registration Statement.
(b) The Underwriters No Underwriter shall not have reasonably determined, discovered and advised disclosed to the Company, Issuers on or prior to the Delivery Date that the Registration StatementStatement as of the Effective Date, any Preliminary Prospectus or the General Prospectus as of its respective date and on the Delivery Date, or the Pricing Disclosure Package or as of the ProspectusApplicable Time, or in each case including any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of a fact whichthat, in the reasonable opinion of Xxxxxxx Xxxxx LLP, counsel for the Underwriters’ reasonable opinion, is material, material or omits to state a fact whichthat, in the Underwriters’ reasonable opinionopinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleadingmisleading (in the case of any Preliminary Prospectus, the Prospectus or the Pricing Disclosure Package, in the light of the circumstances under which such statements were made).
(c) The Underwriters shall have receivedAll corporate, in form satisfactory partnership and limited liability company proceedings and other legal matters incident to the Underwriters authorization, form and Underwriters’ counsel validity of (i) the Debt Documents, the Registration Statement, any Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel matters relating to the Company dated as of Debt Documents and the Closing Date and addressed transactions contemplated thereby, shall be reasonably satisfactory in all material respects to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion Partnership Parties shall have been provided furnished to the Underwriters with consent from such counsel. VCL Law LLP, counsel all documents and information that they may reasonably request to the Underwriters, enable them to pass upon such matters.
(d) Xxxxxx & Xxxxxx L.L.P. shall have furnished to the Representative Representatives its (i) written opinion, as counsel to the Partnership Parties, addressed to the Underwriters and dated the Closing Date or any Additional Closing Delivery Date, in form and substance reasonably satisfactory to the Representatives, with respect to the matters set forth in Exhibit A to this Agreement.
(e) The General Counsel of BGL shall have furnished to the Representatives his written opinion, as counsel to the case may be, and (ii) negative assurance letterIssuers, addressed to the Underwriters and dated the Closing Date or any Additional Closing Delivery Date, in form and substance reasonably satisfactory to the Representatives, with respect to the matters set forth in Exhibit B to this Agreement.
(f) Xxxxxxx Xxxxx LLP shall have furnished to the Representatives its written opinion or opinions, as counsel for the Underwriters, addressed to the Underwriters and dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus, the Pricing Disclosure Package and such other related matters as the case Representatives may bereasonably require, and the Company Partnership Parties shall have furnished to such counsel such documents and information as such counsel may they reasonably request to enable for the purpose of enabling them to pass on upon such matters. XxxXxxxxx Law Offices.
(g) Promptly after the execution of this Agreement, PRC counsel the Representatives shall have received from Deloitte & Touche LLP a letter (the “initial letter”), in form and substance satisfactory to the Underwriters, shall have furnished to the Representative its written opinionRepresentatives, addressed to the Underwriters and dated the Closing Date or any Additional Closing Datedate hereof (i) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of the case may bedate hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Deloitte & Touche LLP a letter (the “bring-down letter”), in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such dateRepresentatives, addressed to the Underwriters and in form and substance satisfactory to dated the Underwriters and Underwriters’ Counsel, Delivery Date (i) confirming that they are an independent certified registered public accountants with respect to the Company accounting firm within the meaning of the Securities Act and all are in compliance with the applicable Regulationsrequirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of such 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 five (5) three days prior to such datethe date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(gi) On the date of this Agreement and on the Closing Date, the Company BGL shall have furnished to the Representative, Representatives a certificate on behalf of the Companycertificate, dated the respective dates of delivery thereof and addressed to the UnderwritersDelivery Date, of its Chairman of the Board, its Chief Executive Officer, its President or any of its Vice Presidents and its Chief Financial Officer stating that:
(i) The representations, warranties and agreements of the Partnership Parties in Section 1 hereof are true and correct on and as of the Delivery Date, and the Partnership Parties have complied with respect all their agreements contained herein and satisfied all the conditions on their part to certain financial date contained in be performed or satisfied hereunder at or prior to the Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings for that purpose have been instituted or, to the knowledge of such officers, threatened; and the Commission has not notified the Issuers of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package and, in their opinion, (A) (1) the “CFO Certificate”Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of the Registration Statement) or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in the case of the Pricing Disclosure Package and the Prospectus), providing “management comfort” with respect to such informationand (B) since the Effective Date, no event has occurred that should have been set forth in form and substance reasonably satisfactory a supplement or amendment to the RepresentativeRegistration Statement, substantially in the form attached hereto as Xxxxx XXXmost recent Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(hj) Subsequent to the execution and delivery of this Agreement and prior Agreement, (i) no Partnership Entity shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, any labor dispute or any court or governmental action, order or decree, (ii) no Partnership Entity shall have become a party to or the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive subject of any amendment thereoflitigation or court or government action, investigation, order or decree that is adverse to any Partnership Entity and (iii) and the Prospectus (exclusive of any supplement thereto), there shall not have been any adverse change in the Ordinary Shares partners’ capital, members’ equity or short- or long-term debt of the Company any Partnership Entity or any change adverse change, or any development involving a prospective adverse change, whether in or not arising from transactions in affecting the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholderssecurityholders’ equity, properties properties, management, business or prospects of the Companyany Partnership Entity, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, in each case the effect of which, which in any such case described above, is, in the reasonable judgment of the UnderwritersRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale public offering or the delivery of the Securities or Offering as on the terms and in the manner contemplated herebyherein and in the Prospectus.
(k) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the debt securities of any Partnership Entity by any “nationally recognized statistical rating organization” (as that term is defined in Section 3(a)(62) of the Exchange Act) and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any debt securities of any Partnership Entity.
(l) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the NYSE shall have been suspended or materially limited, the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) trading in any securities of any Partnership Entity on any exchange or in the over-the-counter market shall have been suspended or materially limited, the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (iii) a banking moratorium shall have been declared by federal or New York or Texas state authorities, (iv) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (v) a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities or any other calamity or crisis after the date hereof, or the effect of international conditions on the financial markets in the United States, that in any such case would make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities on the terms and in the manner contemplated herein and in the Prospectus.
(m) The Underwriters shall have received a lock-up agreement from each Lock-Up Partythe Partnership Parties such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, duly executed by the applicable Lock-Up Partyletters, evidence and certificates mentioned above or elsewhere in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares this Agreement shall be listed deemed to be in compliance with the provisions hereof only if they are in form and admitted and authorized substance reasonably satisfactory to counsel for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 3 contracts
Samples: Underwriting Agreement (Boardwalk Pipeline Partners, LP), Underwriting Agreement (Boardwalk Pipeline Partners, LP), Underwriting Agreement (Boardwalk Pipeline Partners, LP)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Securities as provided herein shall be pursuant to any Terms Agreement are subject to: (i) to the accuracy of the representations and warranties on the part of the Company herein contained, contained as of the date hereof Applicable Time and as Closing Time, to the accuracy of the Closing Date or statements of the Additional Closing Date, (ii) the absence from Company’s officers made in any certificates, opinions, written statements or letters certificate furnished pursuant to the Underwriters or provisions hereof, to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of all of its covenants and other obligations hereunder, hereunder and (iv) each of to the following additional further conditions.:
(a) The A. If the Registration Statement shall have has not become effective and all necessary regulatory and listing approvals shall have been received prior to the Applicable Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than 5:30 P.M., Eastern Time(i) 6:00 p.m. New York City time, on the date of this Agreementdetermination of the public offering price, if such determination occurred at or prior to 3:00 p.m., New York City time, on such date or (ii) 12:00 Noon on the business day following the day on which the public offering price was determined, if such determination occurred after 3:00 p.m., New York City time, on such date; if filing of the Final Prospectus, or at such later time and date as shall have been consented any supplement thereto, is required pursuant to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act424(b), the Prospectus Final Prospectus, and any such supplement, shall have been filed with in the Commission in a timely fashion in accordance with manner and within the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to time period required by Rule 424(b) within ).
B. At the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, Time (i) no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no issued under the 1933 Act or proceedings for the issuance of such an order shall have been thereof or initiated or threatened; all requests of threatened by the Commission for additional information Commission, (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwiseii) shall have been complied with to the Underwriters’ satisfaction.
(b) The Underwriters there shall not have reasonably determined, and advised been since the execution of such Terms Agreement any decrease in the ratings of any of the Company’s debt securities by any of Xxxxx’x Investors Service, Inc., S&P Global Ratings, a division of S&P Global, Inc., or Fitch Ratings, Inc. or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change and (iii) there shall not have come to the attention of the Representatives any facts that would cause them reasonably to believe that the Registration Statement, the General Disclosure Package or the Final Prospectus, or any amendment thereof or supplement theretoat the time it was required to be delivered to a purchaser of the Securities, or any Issuer Free Writing Prospectus, contains contained an untrue statement of a material fact which, in the Underwriters’ reasonable opinion, is material, or omits omitted to state a material fact which, necessary in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading.
(c) The Underwriters C. At the applicable Closing Time you shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company:
1. The favorable opinion, dated as of the Closing Date and addressed to the UnderwritersTime, and (iii) legal opinions from Xxx Xxx Law Officesof Shearman & Sterling LLP, PRC legal counsel to of the Company, substantially in the form set forth in Exhibit C.
2. The favorable opinion, dated as of the Closing Date. Each Time, of Xxxxx Xxxxx, Vice President, Chief Corporate Counsel & Assistant Secretary of the Company, substantially in the form set forth in Exhibit D.
3. The favorable opinion shall provide assurance to parties that the legal aspects or opinions, dated as of the transaction have been properly examined and deemed compliant with applicable lawsClosing Time, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to for the Underwriters, shall have furnished with respect to the Representative its (i) written opinionissuance and sale of the Securities, addressed to the Underwriters Indenture, the Registration Statement, the Final Prospectus and dated the Closing Date or any Additional Closing Date, other related matters as the case Representatives may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may bereasonably require, and the Company shall have furnished to such counsel such documents and information as such counsel they may reasonably request to enable for the purpose of enabling them to pass on upon such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters D. At the applicable Closing Time there shall not have received certificates of been, since the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of Applicable Time or since the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as time of which information is given in the Registration Statement and the ProspectusDisclosure Package, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions material adverse change in the ordinary course condition (financial or otherwise), earnings, results of business.
(e) At each of the Closing Dateoperations, the Underwriters shall have received a certificate business or properties of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto and its subsidiaries considered as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a changeone enterprise, whether or not arising from transactions in the ordinary course of business, except as set forth or contemplated in the businessDisclosure Package and the Final Prospectus (exclusive of any supplement thereto), and the Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board, the Chief Executive Officer, the President, the principal financial officer or the principal accounting officer of the Company, dated as of such Closing Time, to the effect that:
1. the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Time with the same effect as if made at the Closing Time and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Time;
2. no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
3. since the date of the most recent financial statements or financial data included or incorporated by reference in the Disclosure Package or the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or otherwiseother), earnings, results of operations, shareholders’ equity, business or properties or prospects of the CompanyCompany and its subsidiaries, taken considered as a wholeone enterprise, including but whether or not limited to arising from transactions in the occurrence ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated herebysupplement thereto).
(i) The Underwriters E. You shall have received from Ernst & Young LLP or other independent certified public accountants acceptable to the Representatives a lock-up agreement from each Lock-Up Partyletter or letters, duly executed by dated the date of the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, Terms Agreement and as of the applicable Closing DateTime, the Shares shall be listed in form and admitted and authorized for trading on the Nasdaq Global Market and substance satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminateRepresentatives, or likely to have the effect of terminating, the registration containing statements and information of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection type customarily included in accountants’ “comfort letters” to underwriters with respect to the fairness financial statements and reasonableness certified financial information contained or incorporated by reference in the Disclosure Package and the Final Prospectus; provided that such letters shall use a “cut-off” date no more than five business days prior to the respective dates of the underwriting terms and arrangementssuch letters.
(l) No action F. At the applicable Closing Time, counsel for the Underwriters shall have been taken furnished with such documents 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, opinions as they may reasonably require for the purpose of the Closing Date, prevent enabling them to pass upon the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities as herein contemplated and related proceedings or materially in order to evidence the accuracy and adversely affect or potentially materially and adversely affect the business or operations completeness of any of the Company.
(m) The Company shall have furnished representations and warranties, or the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect fulfillment of any of the CSRC Filings on its websiteconditions, 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 all material respects satisfactory in form and substance to the Representatives and counsel for the Underwriters. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, the applicable Terms Agreement may be terminated by the Representatives by notice to the Company at any time at or prior to the applicable Closing Time, and such notice termination shall be without liability of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidatedany party to any other party except as provided in Section 5 hereof.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 3 contracts
Samples: Underwriting Agreement (Boston Scientific Corp), Underwriting Agreement (Boston Scientific Corp), Underwriting Agreement (Boston Scientific Corp)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters to purchase Underwritten Securities pursuant to the applicable Terms Agreement are subject to the accuracy, at and pay for (except as otherwise stated herein) as of the Securities as provided herein shall be subject to: (i) date hereof, the accuracy Applicable Time, the applicable Representation Date, the Closing Time and at each Date of Delivery, of the representations and warranties made herein by the Company, to the accuracy of the Company herein contained, as statements of the date hereof Company’s officers or directors in any certificate furnished pursuant to the provisions hereof, to compliance at and as of the Closing Time and at each Date of Delivery by the Company, with its covenants and agreements herein contained and other provisions hereof to be satisfied at or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished prior to the Underwriters Closing Time, or to Underwriters’ Counsel pursuant to this Section 7 Date of any misstatement or omissionDelivery, (iii) as the performance by the Company of its obligations hereundercase may be, and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have has become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Time and any Date and the actual time of the ClosingDelivery, (i) no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings for the issuance of such an order that purpose shall have been initiated or, to the knowledge of the Company or threatened; all requests you, threatened by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters, (ii) each preliminary prospectus and the Prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B), (iii) the Final Term Sheet and any other material required to be filed by the Company pursuant to Rule 433(d) of the 1933 Act Regulations shall have been filed with the Commission within the applicable time periods prescribed for such filings under such Rule 433, (iv) the Company shall have paid the required Commission filing fees relating to the Underwritten Securities within the time period required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations, and (v) there shall not have come to your attention any facts that would cause you to believe that (a) the Prospectus, together with the applicable Prospectus Supplement, at the time it was required to be delivered (or but for the exception afforded by Rule 172 of the 1933 Act Regulations would be required to be delivered) to purchasers of the Underwritten Securities, or (b) the General Disclosure Package, at 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 existing at such time, not misleading.
(b) At the time of execution of the applicable Terms Agreement, you shall have received from PricewaterhouseCoopers LLP a letter, dated the date of such execution, in form and substance satisfactory to you, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters.
(c) At the time of execution of the applicable Terms Agreement, you shall have received from Deloitte Touche Tohmatsu Auditores Independentes a letter, dated the date of such execution, in form and substance satisfactory to you, containing statements and information of the type customarily included in foreign unconsolidated joint venture’s accountants’ “comfort letters” to underwriters with respect to the financial statements of SSB and its consolidated subsidiaries incorporated by reference in the Registration Statement, the General Disclosure Package, Package and the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(bd) The Underwriters shall not have reasonably determinedAt the Closing Time, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters you shall have receivedreceived from PricewaterhouseCoopers LLP a letter, in form satisfactory dated the Closing Time, to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegelseffect that such accountants reaffirm, Cayman Islands counsel to the Company dated as of the Closing Date Time, and addressed as though made on the Closing Time, the statements made in the letter furnished by such accountants pursuant to paragraph (b) of this Section 8, except that the specified date will be a date not more than three business days prior to the UnderwritersClosing Time.
(e) At the Closing Time, you shall have received from Deloitte Touche Tohmatsu Auditores Independentes a letter, dated the Closing Time, to the effect that such accountants reaffirm, as of the Closing Time, and as though made on the Closing Time, the statements made in the letter furnished by such accountants pursuant to paragraph (iic) legal opinions and negative assurance letter of this Section 8, except that the specified date will be a date not more than three business days prior to the Closing Time.
(f) At the Closing Time, you shall have received from DLA Piper UK LLPXxxxx Day, U.S. legal counsel for the Company, an opinion, dated as of the Closing Date Time, substantially in the form set forth in Exhibit B hereto and addressed to such further effect as counsel to the Underwriters may reasonably request.
(g) At the Closing Time, you shall have received from Sidley Austin LLP, counsel for the Underwriters, their opinion or opinions dated the Closing Time in form and substance satisfactory to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel they may reasonably request to enable for the purpose of enabling them to pass on upon such matters. XxxXxxxxx Law OfficesIn giving their opinion, PRC counsel Sidley Austin LLP may rely as to matters involving the laws of the State of Ohio upon the opinion of Xxxxx Day. Xxxxx Day and Sidley Austin LLP may rely (i) as to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer qualification of the Company (or its subsidiaries to do business in any state or jurisdiction, upon certificates of appropriate government officials, telephonic confirmation by representatives of such states or confirmation from information contained on the “Officers’ Certificate”), substantially in the form attached hereto as Annex I websites of such states and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as to matters of the date hereof fact, upon certificates and as written statements of the Closing Date, the representations officers and warranties employees of and accountants for the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXXsubsidiaries.
(h) Subsequent to the execution and delivery of this Agreement and the Terms Agreement and prior to the Closing Time or any Date orof Delivery:
(i) there shall not have occurred any downgrading, if earliernor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that either (x) does not indicate the direction of the possible change or (y) indicates a negative change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the 1934 Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, the General Disclosure Package and the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Underwritten Securities on the terms and in the manner contemplated in the Registration Statement, the General Disclosure Package and the Prospectus.
(i) At the Closing Time (i) there shall not have been, since the date of the applicable Terms Agreement or since the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) Statement, the General Disclosure Package and the Prospectus Prospectus, any Material Adverse Effect, other than as set forth in the Registration Statement, the General Disclosure Package and the Prospectus, (exclusive ii) 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, (iii) the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of any supplement thereto)the 1933 Act objecting to the use of the automatic shelf registration statement form, there (iv) no stop order suspending the effectiveness of the Registration Statement shall not have been issued under the 1933 Act and no proceeding therefor shall have been instituted or threatened by the Commission, (v) if the issuance of the Underwritten Securities constitutes a reopening of Previously-Issued Securities, no event of default or default with notice and/or lapse of time that would be an event of default in respect of the Previously-Issued Securities has occurred and is continuing and (vi) you shall have received at the Closing Time a certificate of (A) the Chief Executive Officer or the President and Chief Financial Officer or any change in Senior Executive Vice President or the Ordinary Shares or long-term debt Chief Accounting Officer of the Company and (B) the Chief Executive Officer or the President and Chief Financial Officer or any change Senior Executive Vice President or development involving a changethe Chief Accounting Officer (in each case, whether only if such officer had not executed the certificate pursuant to clause (vi)(A) above) or not arising from transactions in the ordinary course Executive Vice President of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects Capital Markets of the Company, taken dated as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the UnderwritersClosing Time, so material and adverse as to make it impracticable or inadvisable to proceed evidencing compliance with the sale provisions of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IVthis Section 8(i).
(j) The Shares You shall have received a certificate, dated the Closing Time, of (i) the Chief Executive Officer or the President and Chief Financial Officer or any Senior Executive Vice President or the Chief Accounting Officer of the Company and (ii) the Chief Executive Officer or the President and Chief Financial Officer or any Senior Executive Vice President or the Chief Accounting Officer (in each case, only if such officer had not executed the certificate pursuant to clause (i) above) or the Executive Vice President of Capital Markets of the Company, to the effect that the representations and warranties of the Company contained in Section 2(a) hereof are registered under true and correct with the Exchange Act and, same force and effect as though expressly made at and as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligibleTime.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished to you such additional certificates as specified in the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents applicable Terms Agreement as they you may have reasonably requestedrequested as to the accuracy, at and as of the Closing Time, of the representations and warranties made herein by them, as to compliance, at and as of the Closing Time, by them with their covenants and agreements herein contained and other provisions hereof to be satisfied at or prior to the Closing Time, and as to other conditions to the obligations of the Underwriters hereunder.
(nl) The CSRC In the event the Underwriters exercise their option provided in a Terms Agreement as set forth in Section 3 hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company hereunder shall be true and correct as of each Date of Delivery, and you shall have concluded received:
(i) A letter from PricewaterhouseCoopers LLP in form and substance satisfactory to you and dated such Date of Delivery, substantially the CSRC Filings same in scope and published substance as the filing results on January 2letter furnished to you pursuant to Section 8(d), 2024 except that the specified date in respect the letter furnished pursuant to this Section 8(l)(i) shall be a date not more than three business days prior to such Date of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidatedDelivery.
(oii) A letter from Deloitte Touche Tohmatsu Auditores Independentes in form and substance satisfactory to you and dated such Date of Delivery, substantially the same in scope and substance as the letter furnished to you pursuant to Section 8(e), except that the specified date in the letter furnished pursuant to this Section 8(l)(ii) shall be a date not more than three business days prior to such Date of Delivery.
(iii) The opinion of Xxxxx Day, counsel for the Company, in form and substance satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities and otherwise to the same effect as the opinion required by Section 8(f).
(iv) The opinion of Sidley Austin LLP, counsel for the Underwriters, dated such Date of Delivery, relating to the Options Securities and otherwise to the same effect as the opinion required by Section 8(g).
(v) A certificate, dated such Date of Delivery, of (A) the Chief Executive Officer or the President and Chief Financial Officer or any Senior Executive Vice President or the Chief Accounting Officer of the Company is and (B) the Chief Executive Officer or the President and Chief Financial Officer or any Senior Executive Vice President or the Chief Accounting Officer (in each case, only if such officer had not executed the certificate pursuant to clause (A) above) or the Executive Vice President of Capital Markets confirming that the certificate or certificates delivered at the Closing Time pursuant to Section 8(i)(v) and 8(j) remains or remain true as of such Date of Delivery.
(vi) Such additional certificates, dated such Date of Delivery, as you may have reasonably requested pursuant to Section 8(k). If any of the conditions hereinabove provided for in this Section shall not have been satisfied when and as required to apply for cybersecurity review with be satisfied, the CAC with respect applicable Terms Agreement may be terminated by you by notifying the Company of such termination in writing or by telegram at or prior to the Company’s proposed overseas listing pursuant Closing Time, but you shall be entitled to the Revised Cybersecurity Review Measureswaive any of such conditions.
Appears in 3 contracts
Samples: Underwriting Agreement (DDR Corp), Underwriting Agreement (DDR Corp), Underwriting Agreement (DDR Corp)
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters to purchase and pay for the Securities Bonds, as provided herein herein, shall be subject to: (i) to the accuracy accuracy, as of the date hereof, as of the Applicable Time and as of the Closing Date, of the representations and warranties of the Company herein containedherein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and (iv) each of to the following additional conditions.:
(a) The Registration Statement Company shall have become effective filed any preliminary prospectus and all necessary regulatory the Prospectus with the Commission (including the information required by Rule 430B under the Act) in the manner and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on within the date of this Agreement, time period required by Rule 424(b) under the Act; or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected filed a post-effective amendment to rely upon the Registration Statement containing the information required by Rule 430A 430B, and such post-effective amendment shall have become effective.
(b) The Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no periods prescribed for such filings under Rule 433.
(c) No stop order suspending the effectiveness of the Registration Statement or any part thereofStatement, or any post-effective amendment thereofto the Registration Statement, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall be in effect and no proceedings for that purpose shall have been issuedinstituted or, to the knowledge of the Company or any Underwriter, threatened by the Commission; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests and any request of the Commission for additional information (to be included in the Registration Statement, Statement or the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ your satisfaction.
(bd) The Underwriters No Underwriter shall not have reasonably determined, and advised the Company, Company that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, which in the Underwriters’ reasonable opinion, your opinion is material, material or omits to state a fact which, which in the Underwriters’ reasonable opinion, your opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(ce) The Underwriters shall have received, Except as contemplated in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, Disclosure Package and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law OfficesProspectus, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing DateStatement, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) Disclosure Package and the Prospectus (exclusive of any supplement theretoamendments or supplements thereto subsequent to the date of this Agreement), there shall not have been any change in the Ordinary Shares capital stock or long-term debt of the Company or any change adverse change, or any development involving a prospective adverse change, in the condition, financial or otherwise, or in the business, net worth or results of operations of the Company from that set forth in the Disclosure Package and the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in your judgment makes it impractical or inadvisable to offer or deliver the Bonds on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(f) On the Closing Date, you shall have received the opinion of XxXxxx Law Firm, P.A., counsel for the Company, dated the Closing Date, in the form of Exhibit A attached hereto.
(g) On the Closing Date, you shall have received the opinion of Xxxxxx X. Xxxxxxx, Esquire, Senior Vice President and General Counsel of the Company, dated the Closing Date, in the form of Exhibit B attached hereto.
(h) On the Closing Date, you shall have received from Xxxxxxxx Xxxxxxx LLP, counsel for the several Underwriters, such opinion or opinions, dated the Closing Date, as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. In rendering their opinion, such counsel may rely upon the opinion of Xxxxxx X. Xxxxxxx, Esquire, referred to above, as to all matters governed by South Carolina law.
(i) On or prior to the date hereof, you shall have received a letter from Deloitte & Touche LLP, dated the date of the execution and delivery of this Agreement, and specifying procedures completed not more than three business days prior to the date of the execution and delivery of this Agreement, addressed to you and in form and substance satisfactory to you, (1) confirming that they are independent accountants with respect to the Company as required by the Act and (2) with respect to the accounting, financing, or statistical information (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) contained in the Registration Statement or incorporated by reference therein, and containing statements and information of the type ordinarily included in accountants’ SAS 72, as amended by SAS 86, “Comfort Letters” to underwriters, with respect to the financial statements and certain financial information contained in or incorporated by reference into the Disclosure Package and the Prospectus, including any pro forma financial information. At the Closing Date, you shall have received a letter from Deloitte & Touche LLP, dated the date of its delivery, which shall reaffirm and, if necessary, update, on the basis of a review in accordance with the procedures set forth in the letter from Deloitte & Touche LLP, during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three business days prior to the Closing Date.
(j) On the Closing Date, you shall have received from the Company a certificate, signed by its Chairman, President or a Vice President and by its Treasurer, principal financial officer or principal accounting officer, dated the Closing Date, to the effect that, to the best of their knowledge based on a reasonable investigation:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied on or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, shall be in effect and no proceedings for that purpose shall have been instituted or threatened by the Commission;
(iii) the Registration Statement and the Prospectus, and any amendments or supplements thereto, contain all statements and information required to be included therein; the Registration Statement or any amendments thereto, at the time the Registration Statement or such amendments became effective and at the Execution Time, did not contain an 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 not misleading; the Prospectus, as of its date and at the Closing Date did not and does not contain an untrue statement of a material fact and did not and does not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Disclosure Package, as of the Applicable Time, did not contain any untrue statement of a material fact and did not omit 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 (provided, however, that in each case, no representation is made, as applicable, as to any statements in or omissions from the Statement of Eligibility on Form T-1 filed as an exhibit to the Registration Statement, the Book-Entry Information, or information contained in or omitted from the Registration Statement or Prospectus or any amendment or supplement thereto in reliance upon, and in conformity with, written information furnished to the Company by you, or by any Underwriter through you, specifically for use in the preparation thereof); and, since the date hereof there has occurred no event required to be set forth in an amended or supplemented prospectus which has not been so set forth and there has been no document required to be filed under the Exchange Act and which upon such filing would be deemed to be incorporated by reference in the Disclosure Package and the Prospectus, which has not been so filed; and
(iv) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto dated after the Execution Time), there has been no material adverse change, or any development which the Company has reasonable cause to believe will involve a prospective material adverse change, in the condition (financial or other), earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of Disclosure Package and the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligibleProspectus.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters to you such further certificates and Underwriters’ Counsel with such other certificates, opinions or documents as they may you shall have reasonably requested.
(nl) The CSRC There shall not have concluded occurred after the CSRC Filings and published date hereof any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that indicates a negative change or does not indicate the filing results on January 2, 2024 in respect direction of the CSRC Filings on its websitepossible change, and such notice in the rating accorded any of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant securities by any “nationally recognized statistical rating organization,” as such term is defined under Section 3(a)(62) of the Exchange Act. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you. The Company will furnish you with such conformed copies of such opinions, certificates, letters and other documents as you shall reasonably request, and the opinions referred to in paragraphs (f) and (g) shall be deemed satisfactory provided they are substantially in the forms attached as exhibits to this Agreement. The documents required to be delivered by this Section 5 shall be delivered to the Revised Cybersecurity Review Measuresoffice of XxXxxx Law Firm, P.A., counsel for the Company, 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxx Xxxxxxxx 00000, on or prior to the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (South Carolina Electric & Gas Co), Underwriting Agreement (South Carolina Electric & Gas Co)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for Securities pursuant to the Securities as provided herein shall be Terms Agreement are subject to: (i) to the accuracy of the representations and warranties on the part of the Company herein contained, as to the accuracy of the date hereof and as statements of the Closing Date or the Additional Closing Date, (ii) the absence from Company’s officers made in any certificates, opinions, written statements or letters certificate furnished pursuant to the Underwriters or provisions hereof, to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of all of its covenants and other obligations hereunder, hereunder and (iv) each of to the following additional further conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under requested and caused the Actdelivery of written opinions, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests of the Commission for additional information (to be included substantially in the Registration Statement, forms contemplated by the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfactionTerms Agreement.
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters Company shall have receivedrequested and caused PricewaterhouseCoopers Auditores Independentes, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel independent auditors for the Company, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, letters, (which may refer to letters previously delivered to one or more of you), dated respectively as of the Closing Date Execution Time and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the Representativemeaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Auditing Standards No. 72.
(dc) The Underwriters Company shall have received certificates of the Chief Executive Officer and Chief Financial Officer furnished to you a certificate, signed by two executive officers of the Company (with specific knowledge of the “Officers’ Certificate”)financial matters of the Company, substantially in the form attached hereto as Annex I and reasonably satisfactory to you, dated as of the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendments or supplements thereto, and the Terms Agreement and that: :
(i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof the Agreement are accurate, (iii) true and correct on and as of the Closing Date, all agreements, conditions Date with the same effect as if made on the Closing Date and obligations of the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or complied with hereunder on satisfied at or prior thereto have been duly performed or complied with, to the Closing Date;
(iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (vii) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor for that purpose or under Section 8A of the Act have been initiated or threatened by instituted or, to the CommissionCompany’s knowledge, threatened;
(viiii) there are no pro forma or as adjusted since the date of the most recent financial statements that are required to be included or incorporated by reference in the Registration Statement Disclosure Package and the Final Prospectus pursuant to (exclusive of any supplement thereto), there has been no material adverse effect on the Regulations which are not so includedcondition (financial or otherwise), prospects, earnings, business or properties of the Company and (vii) subsequent to the respective dates its Subsidiaries, taken as of which information is given a whole, except as set forth in or contemplated in the Registration Statement Disclosure Package and the ProspectusFinal Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any Material Adverse Change decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any development involving notice given of any intended or potential decrease in any such rating or of a prospective Material Adverse Change, whether or possible change in any such rating that does not arising from transactions in indicate the ordinary course direction of businessthe possible change.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(hd) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change change, or any development involving a prospective change, in or affecting the Ordinary Shares condition (financial or long-term debt otherwise), earnings, business or properties of the Company or any change or development involving and its Subsidiaries, taken as a changewhole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the business, condition Disclosure Package and the Final Prospectus (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence exclusive of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, supplement thereto) the effect of which, in any such case described above, which is, in the reasonable judgment of the Underwritersyour sole judgment, so material and adverse as to make it impracticable impractical or inadvisable to proceed with the sale offering or delivery of the Securities or Offering as contemplated herebyby the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(ie) The Underwriters shall have received a lock-up agreement from each Lock-Up PartySince the Execution Time, duly executed there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the applicable Lock-Up Party, Company 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 each case substantially any such rating or of a possible change in any such rating that does not indicate the form attached as Annex IVdirection of the possible change.
(jf) The Shares are registered Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Exchange Act and, as Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(g) Prior to the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished to the Underwriters such further information, certificates and Underwriters’ Counsel with such other certificates, opinions or documents as they the Underwriters may have reasonably requestedrequest.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 2 contracts
Samples: Underwriting Agreement (Vale Overseas LTD), Underwriting Agreement (Vale Overseas LTD)
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters to purchase and pay for the Designated Securities as provided herein shall be they have severally agreed to purchase under this Agreement on the Closing Date are subject to: (i) to the accuracy in all material respects of the representations and warranties of the Company herein contained, and the Guarantor contained in this Agreement as of the date hereof of this Agreement and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel accuracy in all material respects of the statements of the Company and the Guarantor made in any certificates pursuant to this Section 7 of any misstatement the provisions hereof delivered prior to or omissionconcurrently with such purchase, (iii) to the performance by the Company and the Guarantor of its their obligations hereunderunder this Agreement, and (iv) each of to the following additional further conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with Section 5(a) hereof; all filings (including, without limitation, the terms thereof and a form final term sheet prepared pursuant to Section 5(a) hereof) required by Rule 424(b) or Rule 433 of the Prospectus containing information relating to the description of the Securities Rules and the method of distribution and similar matters Regulations shall have been filed with made, and no such filings will have been made without the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time consent of the Closing, Representative(s); no stop order suspending the effectiveness of the Registration Statement or any part thereofamendment or supplement thereto, preventing or any amendment thereof, nor suspending or preventing the use of the General Disclosure PackagePreliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or the Prospectus, or suspending the qualification of the Designated Securities for offering or sale in any jurisdiction shall have been issued; no proceedings for the issuance of any such an order shall have been initiated or threatened; all requests no notice of objection of the Commission to use the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations shall have been received by the Company; and any request of the Commission for additional information (to be included in the Registration Statement, Statement or the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been disclosed to the Underwriters and complied with to the Underwriters’ satisfaction.
(b) The Underwriters No Underwriter shall not have reasonably determined, been advised by the Company or shall have discovered and advised disclosed to the Company, Company that the Registration Statement, the General Disclosure Package or the Prospectus, Prospectus or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, which in the opinion of the Underwriters’ reasonable opinion, or in the opinion of counsel to the Underwriters, is material, or omits to state a fact which, in the opinion of the Underwriters’ reasonable opinion, or in the opinion of counsel to the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) The At the Closing Date, if from the Applicable Time to the Closing Date there is no Downgrade Event or Review Event (each as defined below), the Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Companyreceived a certificate, dated as of the Closing Date. Each , of the opinion shall provide assurance to parties that Guarantor signed by the legal aspects deputy chief financial officer of the transaction have been properly examined and deemed compliant Guarantor, certifying, with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided respect to the Underwriters with consent from such counsel. VCL Law LLPGuarantor, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated that at the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed subsequent to the Underwriters and dated the Closing Date or any Additional Closing Date, dates as the case may be, and the Company shall have furnished to such counsel such documents and of which information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially is given in the form attached hereto as Annex I and dated as of the Closing DateDisclosure Package, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued shall be in effect, and no proceedings therefor have been initiated for such purpose shall be pending before or threatened by the CommissionCommission (ii) there shall not have been any material adverse change in the financial condition, earnings or prospects of the Guarantor and its subsidiaries, considered as one enterprise, (viiii) since the Applicable Time, there are shall not have been, with respect to the rating of any debt securities or preferred stock of the Guarantor or debt securities or preferred stock unconditionally guaranteed by the Guarantor, a downgrade by Xxxxx’x Investor Services, Inc. (“Xxxxx’x”), Fitch Ratings Ltd. (“Fitch”); or Standard and Poor’s Corporation (“S&P”) (any such event, a “Downgrade Event”), or any public announcement that either Moody’s, Fitch, or S&P has under surveillance or review its rating of any debt securities or preferred stock of the Guarantor or debt securities or preferred stock unconditionally guaranteed by the Guarantor (other than an announcement with positive implications of a possible upgrading, and no pro forma or as adjusted financial statements that are required implication of a possible downgrading, of such rating, and any announcement made prior to the Applicable Time) (any such event, a “Review Event”), (iv) each of the Company and the Guarantor shall have complied with all agreements and satisfied all conditions on its respective part to be included in the Registration Statement and the Prospectus pursuant performed or satisfied hereunder at or prior to the Regulations which are not so includedClosing Date, and (viiv) subsequent the representations and warranties of the Company and the Guarantor set forth in Section 1 above and in the applicable Underwriting Agreement, if any, are accurate in all material respects as though expressly made at and as of the Closing Date. If, however, from the Applicable Time to the respective dates Closing Date, there is a Downgrade Event or a Review Event, the Underwriters shall have received at the Closing Date a certificate, dated as of which information is given the Closing Date, of the Guarantor signed by the deputy chief financial officer of the Guarantor, certifying, with respect to the Guarantor, solely the matters set forth in Section 6(c)(i), (ii), (iv) and (v), unless the Registration Statement Representatives, on behalf of the Underwriters, shall have notified in writing to the Company and the ProspectusGuarantor, there has not been any Material Adverse Change by the earlier of 48 hours from the occurrence of the Downgrade Event or any development involving a prospective Material Adverse ChangeReview Event, whether as the case may be, or not arising from transactions the Closing Date, that in their good faith and judgment such Downgrade Event or Review Event makes it impracticable or inadvisable to consummate the ordinary course offering of business.
(e) At each of the Designated Securities. In addition, at the Closing Date, the Underwriters shall have received a certificate dated as of the Closing Date of the Company signed by the Secretary a director of the Company (the “Secretary’s Certificate”)certifying, substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of with respect to the Company’s Board of Directors relating to , the Offering are matters set forth in full force and effect and have not been modified; (iiithis Section 6(c)(iv) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificatev).
(fd) On the date of this Agreement and on At the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as signed opinion or opinions of each such date, addressed to the Underwriters and in form and substance counsel reasonably satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning dated as of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letterClosing Date.
(ge) On At the Applicable Time, the Underwriters shall have received letters of accountants, ordinarily referred to as “comfort letters”, confirming information as specified in the applicable Underwriting Agreement and dated the date on which the Term Sheets and/or the Prospectus are dated, as applicable from those accountants of this Agreement and on the Guarantor or any of its subsidiaries as specified in the applicable Underwriting Agreement.
(f) At the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, letters of accountants dated as of the Closing Date, confirming information as specified in the Shares comfort letters delivered pursuant to Section 6(e) above, from those accountants of the Guarantor or any of its subsidiaries as specified in the applicable Underwriting Agreement. If any of the conditions specified in this Section 6 or in Section 2 of the applicable Underwriting Agreement shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall not have been provided fulfilled in all material respects when and as required by this Agreement to be fulfilled, this Agreement may be terminated by the Underwriters upon notice to the Underwriters. The Company shall have taken no action designed and the Guarantor at any time at or prior to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order such termination shall be without liability of any federalparty to any other party except as provided in Section 7 herein. Notwithstanding any such termination, state or foreign court the provisions of Sections 8, 9, 10, 14 and 16 herein shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Companyremain in effect.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 2 contracts
Samples: Underwriting Agreement (Telefonica S A), Underwriting Agreement (Telefonica S A)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder are subject to purchase the accuracy, as of the date hereof and pay for the Securities Closing Date (as provided herein shall be subject to: (i) if made at the accuracy Closing Date), of the representations and warranties of the Company herein containedcontained herein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its their obligations hereunder, hereunder and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with Section 4(a) hereof; all filings (including, without limitation, the terms thereof and a form Final Term Sheet) required by Rule 424(b) or Rule 433 of the Prospectus containing information relating to the description of the Securities Rules and the method of distribution and similar matters Regulations shall have been filed with the Commission pursuant to Rule 424(b) made within the applicable time period; andperiods prescribed by such Rules, at or prior to and no such filings will have been made without the Closing Date and the actual time consent of the Closing, Representatives; no stop order suspending the effectiveness of the Registration Statement or any part thereofamendment or supplement thereto, preventing or any amendment thereof, nor suspending or preventing the use of the General Disclosure Packageany Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or the Prospectus, or suspending the qualification of the Notes for offering or sale in any jurisdiction shall have been issued; no proceedings for the issuance of any such an order shall have been initiated or threatenedthreatened pursuant to Section 8A of the Securities Act; all requests no notice of objection of the Commission to use the Registration Statement or any post-effective amendment thereto shall have been received by the Company; and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been disclosed to the Representatives and complied with to the Representatives’ satisfaction.
(b) No Underwriter shall have been advised by the Company, or shall have discovered and disclosed to the Company, that the Registration Statement, the General Disclosure Packagemost recent Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, thereto contains an untrue statement of fact which, in the opinion of the Representatives or of counsel to the Underwriters’ reasonable opinion, is material, or omits to state a any fact which, in the opinion of the Representatives or of counsel to the Underwriters’ reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) The Underwriters All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Indenture, the Notes, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have receivedfurnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) The Representatives shall have received from Xxxxx Xxxx LLP, in form satisfactory to counsel for the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & RiegelsCompany, Cayman Islands counsel to the Company dated as of the Closing Date and opinion or opinions, addressed to the Underwriters, dated the Closing Date, in form and substance satisfactory to the Representatives and substantially in the form of Exhibits B.
(iie) legal opinions and negative assurance letter The Representatives shall have received from DLA Piper UK LLP, U.S. legal counsel for the Company’s General Counsel the opinion or opinions, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each , in form and substance satisfactory to the Representatives and substantially in the form of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion Exhibit C.
(f) The Representatives shall have been provided to the Underwriters with consent received from such counsel. VCL Law Xxxx Xxxxxxxx LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinionsuch opinion or opinions, addressed to the Underwriters and Underwriters, dated the Closing Date or any Additional Closing Dateand in form and substance satisfactory to the Representatives, with respect to the Notes, Indenture, Registration Statement, Prospectus and Disclosure Package and other related matters as the case Representatives may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may bereasonably require, and the Company shall have furnished to such counsel such documents and information as such counsel they may reasonably request to enable for the purpose of enabling them to pass on upon such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, .
(g) The Representatives shall have furnished to the Representative its written opinionreceived a certificate, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of signed by the Chief Executive Officer Officer, the President or any Vice President of the Company and by the Chief Financial Officer or Chief Accounting Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) there shall not have been, since the conditions set forth date hereof, since the Applicable Time or since the respective dates as of which information is given in subsection (a) the Prospectus or the Disclosure Package, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of this Section 7 have been satisfiedthe Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business; (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 1 hereof are accuratetrue and correct with the same force and effect as though expressly made at and as of Closing Date, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company has complied with all agreements and satisfied all conditions on its part to be performed or complied with hereunder on satisfied at or prior thereto have been duly performed or complied with, to Closing Date 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 or contemplated by the Commission.
(h) Except as described in the most recent Preliminary Prospectus and the Prospectus, (i) neither the Company has not sustained nor any material of the Company’s subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its businessesbusiness from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, order or decree or (vii) no stop order suspending since such date there shall not have been any change in the effectiveness capital stock or long-term debt of the Registration Statement Company or any amendment thereof has been issued and no proceedings therefor have been initiated of the Company’s subsidiaries or threatened by the Commissionany change, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Changechange, whether in or not arising from transactions affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, business or prospects of the Company and the Company’s subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the ordinary course judgment of businessthe Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Notes or on the terms and in the manner contemplated in the Prospectus.
(ei) At each Concurrently with the execution of the Closing Datethis Agreement, the Underwriters Representatives shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”)from KPMG LLP, substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Dateindependent registered public accounting firm, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letterinitial comfort letter”) as of each such date, addressed to the Underwriters Representatives on behalf of the Underwriters, dated the date hereof, and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, Representatives (i) confirming that they are an independent certified registered public accountants with respect to the Company accounting firm within the meaning of the Securities Act and all are in compliance with the applicable Regulations, requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Preliminary Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(j) The Representatives shall have received a “bring-down comfort” letter (the “bring-down comfort letter”) from KPMG LLP, the Company’s independent registered public accounting firm, addressed to the Representatives on behalf of the Underwriters, dated the Closing Date, and in form and substance satisfactory to the Representatives (i) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down comfort letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) three days prior to such datethe date of the bring-down comfort letter), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such the initial comfort letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial comfort letter.
(gk) On the date of this Agreement and Prior to or on the Closing Date, the Company Representatives shall have been furnished to by the Representative, a certificate on behalf of Company such additional documents and certificates as the Company, dated Representatives or counsel for the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance Underwriters may reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXXrequest.
(hl) Subsequent to the execution and delivery of this Agreement and prior Agreement, (i) no downgrading shall have occurred in the rating accorded to the Closing Date ordebt securities of the Company, if earlieror any of the Company’s subsidiaries by any “nationally recognized statistical rating organization” (as that term is defined in Section 3(a)(62) of the Exchange Act), the dates as of which information is given in the Registration Statement and (exclusive ii) no such organization shall have publicly announced that it has under surveillance or review with possible negative implications its rating of any amendment thereofof the Company’s debt securities.
(m) Subsequent to the execution and the Prospectus (exclusive delivery of any supplement thereto)this Agreement, there shall not have been occurred any change of the following: (i) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or in the Ordinary Shares over-the-counter market, or long-term debt trading in any securities of the Company on any exchange or any change or development involving a change, whether or not arising from transactions in the ordinary course over-the-counter market, shall have been suspended or materially limited or the settlement of businesssuch trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction; (ii) a banking moratorium shall have been declared by federal or state authorities; (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States; or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the UnderwritersRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale offering of Securities the Notes or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by on the applicable Lock-Up Party, in each case substantially terms and in the form attached as Annex IV.
(j) The Shares are registered under manner contemplated in the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requestedProspectus.
(n) The CSRC Company shall have concluded executed and delivered a Board Resolution (as defined in the CSRC Filings Indenture) and published an Officers’ Certificate (as defined in the filing results on January 2, 2024 Indenture) in respect of the CSRC Filings on its website, Notes and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidatedthe Underwriters shall have received copies thereof.
(o) The Company is FINRA, upon review, if any, of the terms of the public offering of the Securities, shall not required have objected to apply for cybersecurity review such offering, such terms or the Underwriters’ participation in same. All opinions, certificates, letters and documents referred to in this Section 6 will be in compliance with the CAC with respect provisions of this Agreement only if they are satisfactory in form and substance to the Company’s proposed overseas listing pursuant Representatives and to counsel for the Underwriters. The Company will furnish to the Revised Cybersecurity Review MeasuresRepresentatives conformed copies of such opinions, certificates, letters and other documents in such number as the Representatives will reasonably request.
Appears in 2 contracts
Samples: Underwriting Agreement (Centene Corp), Underwriting Agreement (Centene Corp)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters of any Designated Shares under the Pricing Agreement relating to purchase and pay for such Designated Shares will be subject, in the Securities as provided herein shall be subject to: (i) Underwriters’ discretion, to the accuracy of the condition that all representations and warranties and other statements of the Company herein contained, as of included or incorporated by reference in the date hereof Pricing Agreement relating to such Designated Shares are true and correct at and as of any Time of Delivery for such Designated Shares and the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished condition that prior to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 such Time of any misstatement or omission, (iii) the performance by Delivery the Company will have performed all of its their obligations hereunderhereunder theretofore to be performed, and (iv) each of the following additional conditions.:
(ai) The Registration Statement shall have become effective Preliminary Prospectus and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating relation to the description of the Securities and the method of distribution and similar matters applicable Designated Shares shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time periodperiod prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; and, at or prior (ii) each Issuer Free Writing Prospectus relating to the Closing Date and Designated Shares (including, without limitation, an Issuer Free Writing Prospectus setting forth the actual time final terms of the Closing, Designated Shares) shall have been filed with the Commission pursuant to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(a) hereof; (iii) no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus thereof shall have been issued; issued and no proceedings proceeding for that purpose or pursuant to Section 8A of the issuance of such an order Securities Act shall have been initiated or threatenedthreatened by the Commission; and (iv) all requests for additional information on the part of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Underwriters’ satisfaction.;
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall will have furnished to the Representative its (i) written opinionUnderwriters such opinion or opinions, addressed dated each Time of Delivery, with respect to the Underwriters good standing status of the Company, the Designated Shares, the Registration Statement, the Prospectus, the Time of Sale Information and dated the Closing Date or any Additional Closing Date, such other related matters as the case Underwriters may bereasonably request, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company such counsel shall have furnished to such counsel received such documents and information as such counsel they may reasonably request to enable them to pass on upon such matters. XxxXxxxxx Law Offices;
(c) Xxxxxx Xxxxxxxx LLP, PRC counsel to the UnderwritersCompany, shall have furnished to the Representative Underwriters their written opinion or opinions, dated the Time of Delivery, in form and substance reasonably satisfactory to the Underwriters, substantially to the effect of Annex II hereto;
(d) On the date of the applicable Pricing Agreement for such Designated Shares and at each Time of Delivery for such Designated Shares, Pricewaterhouse Coopers LLP, which has audited the financial statements of the Company and its written opinionconsolidated subsidiaries and of the Operating Partnership and its consolidated subsidiaries, addressed included or incorporated by reference in the Registration Statement, shall have furnished to the Underwriters and letters, dated the Closing Date or any Additional Closing Date, as the case may berespective dates of delivery, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates Underwriters, containing statements and information of the Chief Executive Officer type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially certain financial information contained or incorporated by reference in the form attached hereto as Annex I Registration Statement, the Preliminary Prospectus and dated as of the Closing Date, to the effect that: Prospectus;
(i) The Company and its subsidiaries (including, without limitation, the conditions set forth in subsection (a) of this Section 7 Operating Partnership), taken as a whole, have been satisfied, (ii) as not sustained since the date of the date hereof latest audited financial statements included or incorporated by reference in the Preliminary Prospectus and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained Prospectus any material loss or interference with its businessesbusiness from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commissiondecree, (vi) there are no pro forma or except as adjusted financial statements that are required to be included set forth in the Registration Statement Time of Sale Information and the Prospectus pursuant to the Regulations which are not so included, and (viiii) subsequent to since the respective dates as of which information is given in the Registration Statement Statement, the Preliminary Prospectus and the ProspectusProspectus (without giving effect to any amendment thereof or supplement thereto subsequent to the date of the Pricing Agreement relating to the Designated Shares), except as set forth in Schedule I to the applicable Pricing Agreement, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions change in the beneficial interests of the Company (other than (x) issuances of beneficial interests (A) pursuant to equity-based awards granted in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate business to trustees or employees of the Company signed by or the Secretary Operating Partnership, (B) upon exercise of options and upon conversion or redemption of convertible or redeemable securities, in each case which were outstanding as of the Company (date of the “Secretary’s Certificate”), substantially latest audited financial statements included or incorporated by reference in the form attached hereto as Annex II Time of Sale Information and dated the Closing DateProspectus, certifying: and (iC) that each upon the exchange of Operating Partnership interests for beneficial interests in the Charter Company and Bylaws is true and complete, has not been modified and is in full force and effect; (iiy) that the resolutions repurchases of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of beneficial interests under the Company; and (iv’s share repurchase program) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectuspartnership interests in the Operating Partnership or the capital stock, as partnership, membership or beneficial interests of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, any of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”)consolidated subsidiaries, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been or any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a changeand its consolidated subsidiaries (including, whether or not arising from transactions in without limitation, the ordinary course of business, in the business, condition (financial or otherwiseOperating Partnership), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, management, results of operations, financial condition or prospects of the Company and its consolidated subsidiaries (including, without limitation, the Operating Partnership), taken as a whole, except as set forth in the Time of Sale Information and the Prospectus (without giving effect to any amendment thereof or supplement thereto subsequent to the occurrence date of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamitythe Pricing Agreement relating to the Designated Shares), the effect of which, in any such case described abovein clause (i) or (ii), is, is in the reasonable judgment of the Underwriters, Underwriters so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Shares on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus;
(f) On or after the date of the Pricing Agreement relating to the Designated Shares, (i) no downgrading shall have occurred in the rating accorded the Operating Partnership’s debt securities or the Company debt securities or, if applicable, preferred shares of beneficial interest by any “nationally recognized statistical rating organization” (as the term is defined in Section 3(a)(62) of the Exchange Act) and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Operating Partnership’s debt securities or the Company’s debt securities or preferred shares;
(g) On or after the date of the Pricing Agreement relating to the Designated Shares, there shall not have occurred any of the following: (i) trading generally will have been suspended or materially limited on the New York Stock Exchange or the over-the-counter market; (ii) trading of any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities will have been declared by federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services; or (iv) there will have occurred any outbreak or escalation of hostilities or acts of terrorism involving the United States or declaration of national emergency or war by the United States or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment of the Underwriters, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or the delivery of Securities the Firm Shares or Offering as Optional Shares or both on the terms and in the manner contemplated hereby.by this Agreement, the Time of Sale Information and the Prospectus;
(h) The Common Shares at each Time of Delivery shall have been duly listed, subject to notice of issuance on the New York Stock Exchange; and
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished or caused to be furnished to the Underwriters at the Time of Delivery for the Designated Shares a certificate or certificates of officers of the Company in such form and executed by such officers of the Company as will be satisfactory to the Underwriters’ Counsel with , as to the accuracy of the representations and warranties of the Company herein at and as of such Time of Delivery, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth in Sections 8(a), 8(e), 8(f) and 8(h) and as to such other certificates, opinions or documents matters as they the Underwriters may have reasonably requestedrequest.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 2 contracts
Samples: Underwriting Agreement (Brandywine Operating Partnership, L.P.), Underwriting Agreement (Brandywine Operating Partnership, L.P.)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Securities as provided herein shall be subject to: (i) to the accuracy on the date hereof and on the Closing Date of the representations and warranties made herein on the part of the Company herein contained, as and of any certificates furnished by the date hereof and as of Company on the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished and to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and (iv) each of the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with with, or transmitted for filing to, the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to 5:30 P.M., New York time, on the Closing Date second business day following the date of this Underwriting Agreement, or such other time and date as may be agreed upon by the Company and the actual time of the Closing, no Underwriters.
(b) No stop order suspending the effectiveness of the Registration Statement shall be in effect at or any part thereof, or any amendment thereof, nor suspending or preventing prior to the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issuedClosing Date; no proceedings for such purpose shall be pending before, or, to the issuance knowledge of such an order the Company or the Underwriters, threatened by, the Commission on the Closing Date; and the Underwriters shall have been initiated or threatened; all requests of received a certificate, dated the Commission for additional information (to be included in Closing Date and signed by the Registration StatementPresident, a Vice President, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus Treasurer or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Underwriters shall not have reasonably determined, and advised an Assistant Treasurer of the Company, to the effect that no such stop order has been or is in effect and that no proceedings for such purpose are pending before or, to the Registration Statementknowledge of the Company, threatened by the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleadingCommission.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of [At the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion there shall have been provided issued, and there shall be in full force and effect, to the Underwriters with consent from such counsel. VCL Law LLPextent legally required for the issuance and sale of the Securities, counsel to an order of the Underwriters, shall have furnished to Commission under the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing DatePublic Utility Holding Company Act of 1935, as amended (the case may be"1935 Act"), authorizing the issuance and (ii) negative assurance lettersale of the Securities on the terms set forth in, addressed to the Underwriters and dated the Closing Date or any Additional Closing Datecontemplated by, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representativethis Underwriting Agreement.]
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”)from [_________________________] and Xxxx & Priest LLP, substantially in the form attached hereto as Annex II and opinions, dated the Closing Date, certifying: substantially in the forms set forth in Exhibits A and B hereto, respectively, (i) that each with such changes therein as may be agreed upon by the Company and the Underwriters with the approval of Counsel for the Charter Underwriters, and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that if the resolutions of the Company’s Board of Directors relating Prospectus shall be supplemented after being furnished to the Offering are Underwriters for use in full force and effect and have not been modified; (iii) offering the good standing of the Company; and (iv) as Securities, with changes therein to the incumbency of the officers of the Company. The documents referred to in reflect such certificate shall be attached to such certificatesupplementation.
(fe) On the date of this Agreement and on At the Closing Date, the Underwriters shall have received a “comfort” letter from Winthrop, Stimson, Xxxxxx Asia CPAs LLP & Xxxxxxx, Counsel for the Underwriters, an opinion, dated the Closing Date, substantially in the form set forth in Exhibit C hereto, with such changes therein as may be necessary to reflect any supplementation of the Prospectus prior to the Closing Date.
(f) On or prior to the effective date of this Underwriting Agreement, the Underwriters shall have received from Coopers & Xxxxxxx L.L.P., the Company's independent certified public accountants (the “Auditor Comfort Letter”) as of each such date"Accountants"), a letter dated the date hereof and addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming effect that (i) they are independent certified public accountants with respect to the Company within the meaning of the Securities Act and the applicable published rules and regulations thereunder; (ii) in their opinion, the financial statements and financial statement schedules examined by them and included or incorporated by reference in the Prospectus comply as to form in all material respects with the applicable Regulations, accounting requirements of the Securities Act and stating, as the Exchange Act and the applicable published rules and regulations thereunder; (iii) on the basis of such date (or, with respect to matters involving changes or developments since performing the respective dates as procedures specified by the American Institute of which specified Certified Public Accountants for a review of interim financial information is given as described in SAS No. 71, Interim Financial Information, on the latest unaudited financial statements, if any, included or incorporated by reference in the Prospectus, as a reading of the latest available interim unaudited financial statements of the Company, the minutes of the meetings of the Board of Directors of the Company, the Executive Committee thereof, if any, and the stockholder of the Company, since December 31, [____] to a specified date not more than five (5) days prior to such date), the conclusions and findings date of such firm letter, and inquiries of officers of the Company who have responsibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an examination made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the financial information and other matters relating comments made in such letter and, accordingly, that the Accountants make no representations as to the Registration Statement covered sufficiency of such procedures for the purposes of the Underwriters), nothing has come to their attention which caused them to believe that, to the extent applicable, (A) the unaudited financial statements of the Company (if any) included or incorporated by such letter.
reference in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the related published rules and regulations thereunder; (gB) On any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles and (C) at a specified date not more than five days prior to the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto)letter, there shall not have been was any change in the Ordinary Shares capital stock or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, decrease in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Partyits net assets, in each case substantially as compared with amounts shown in the form attached as Annex IV.
(j) The Shares are registered under most recent balance sheet incorporated by reference in the Exchange Act andProspectus, as except in all instances for changes or decreases which the Prospectus discloses have occurred or may occur, for declarations of dividends, for the Closing Daterepayment or redemption of long-term debt, for the Shares shall be listed and admitted and authorized amortization of premium or discount on long-term debt, for trading on the Nasdaq Global Market and satisfactory evidence redemption or purchase of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminatepreferred stock for sinking fund purposes, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received for any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 increases in long-term debt in respect of previously issued pollution control, solid waste disposal or industrial development revenue bonds, or for changes or decreases as set forth in such letter, identifying the CSRC Filings on its website, same and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with specifying the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.amount thereof; and
Appears in 2 contracts
Samples: Underwriting Agreement (Louisiana Power & Light Co /La/), Underwriting Agreement (Arkansas Power & Light Co)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Securities Shares as provided herein shall be subject to: to the accuracy, as of the date hereof and the Closing Date and any later date on which Option Shares are to be purchased (i) the accuracy "Option Closing Date"), as the case may be, of the representations and warranties of the Company herein containedherein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, p.m. on the date hereof, or with the consent of this Agreementthe Underwriters, at a later time and date, not later, however, than 5:30 p.m. on the first business day following the date hereof, or at such later time and date as shall have been consented to may be approved by a majority in writing by interest of the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof ; and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no issued under the Act or proceedings for the issuance of such an order shall have been therefor initiated or threatened; all requests threatened by the Commission and any request on the part of the Commission for additional information (to be included in the Registration Statement, Statement or the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of counsel to the Underwriters’ satisfaction. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time 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 of Rule 430A of the Rules and Regulations. Qualification under the securities laws of such states as Capital West may deem necessary to the success of the underwriting of the issue and sale of the Shares upon the terms and conditions set forth in this Agreement or contemplated by this Agreement and containing no provisions unacceptable to Capital West will have been secured, and no stop order (or the equivalent thereof) will be in effect denying or suspending effectiveness of such qualification, nor will any stop order proceedings (or the equivalent thereof) with respect thereto be instituted or pending or threatened under such laws.
(b) The At the Closing Date and the Option Closing Date, if any, counsel for the Underwriters shall not have reasonably determinedbeen furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Shares as contemplated herein and related proceedings or in order to evidence the accuracy of any of the representations and warranties, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectusfulfillment of any of the conditions, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement herein contained; and all proceedings taken by the Company in connection with the issuance and sale of fact which, the Shares as herein contemplated shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters There shall not have receivedbeen, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of since the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change change in the condition (financial or any development involving a prospective Material Adverse Changeotherwise), earnings, operations, business affairs or business prospects of the Company and its Subsidiary considered as one enterprise, whether or not arising from transactions in the ordinary course of business.
(e) At each business which, in Capital West's sole judgment, is material and adverse and that makes it, in Capital West's sole judgment, impracticable or inadvisable to proceed with the public offering of the Closing DateShares as contemplated by the Prospectus, and the Underwriters shall have received a certificate of the Company signed by the Secretary President or Vice President of the Company (and of the “Secretary’s Certificate”)chief financial or chief accounting officer of the Company, substantially in the form attached hereto dated as Annex II and dated of the Closing Date, certifying: to the effect that (i) that each of the Charter and Bylaws is true and completethere has been no such material adverse change, has not been modified and is in full force and effect; (ii) that the resolutions of representations and warranties in Section 2 hereof are true and correct with the Company’s Board of Directors relating to the Offering are in full same force and effect as though expressly made at and have not been modified; as of the Closing Date, (iii) the good standing of Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Company; Closing Date, and (iv) as to no stop order suspending the incumbency effectiveness of the officers of Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Company. The documents referred to in such certificate shall be attached to such certificateCommission or any Blue Sky jurisdiction.
(fd) On the date of this Agreement and on At the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP received:
(the “Auditor Comfort Letter”1) The opinion, dated as of each such datethe Closing Date of Sichenzia, addressed to Ross & Xxxxxxxx, LLP, counsel for the Underwriters and Company, in form and substance satisfactory to counsel for the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the effect that:
(i) The Company within has been duly incorporated and is validly existing as a corporation in good standing under the meaning laws of the Act and all applicable RegulationsProvince of Ontario, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letterCanada.
(gii) On the date of this Agreement The Company has corporate power and on the Closing Dateauthority to own, the Company shall have furnished lease and operate its properties and to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of conduct its Chief Financial Officer with respect to certain financial date contained business as described in the Registration Statement and the Prospectus (the “CFO Certificate”)and to enter into and perform its obligations under this Agreement and to issue, providing “management comfort” with respect to such information, in form sell and substance reasonably satisfactory deliver to the RepresentativeUnderwriters the Shares or the Option Shares, substantially in as the form attached hereto as Xxxxx XXXcase may be, to be issued and sold by it hereunder.
(hiii) Subsequent The Company is duly qualified to do business as a foreign corporation and is in good standing in the jurisdictions where such qualification is required, and is not required to be qualified to do business as a foreign corporation in any other jurisdiction.
(iv) At the Closing Date, after giving effect to the execution and delivery sale of this Agreement and prior to the Closing Date or, if earlierShares, the dates authorized capital stock of the Company is as set forth in the Prospectus under the caption "Capitalization" as of which information is given the dates stated therein; the issued and outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and nonassessable and have not been issued in violation of any preemptive right contained in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares charter or long-term debt bylaws of the Company or any change co-sale right, registration right, right of first refusal or development involving other similar right (other than such preemptive rights or other rights to subscribe for or purchase securities as were fully complied with or expressly waived or with respect to the violation of which the right to make a changeclaim is barred by the applicable statute of limitation).
(v) The Shares and the Option Shares, whether as the case may be, to be purchased from the Company hereunder 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 therefor in accordance with the terms hereof, will be validly issued and fully paid and nonassessable, and will not be issued in violation of any preemptive right under the charter or bylaws of the Company or any co-sale right, right of first refusal or other similar right and the stockholders of the Company have no preemptive right under the charter or bylaws of the Company or other rights to purchase any of the Shares; the shares of Common Stock reserved for issuance upon the exercise of the Underwriters' Warrants have been duly and validly authorized and are sufficient in number to meet the exercise requirements thereof, and such shares of Common Stock, when issued upon exercise, will be duly and validly issued, fully paid (assuming exercise in accordance with the Warrant Agreement and receipt by the Company of the exercise price thereof) and nonassessable; the stockholders of the Company have no preemptive right under the charter or bylaws of the Company or other rights to purchase any of the Shares; and the shares of Common Stock reserved for issuance upon the exercise of the Company's outstanding options have been duly and validly authorized and are sufficient in number to meet the exercise requirements of such options, and such shares of Common Stock, when issued upon exercise, will be duly and validly issued, fully paid (assuming exercise in accordance with the governing instruments therefor and receipt by the Company of the exercise price thereof) and nonassessable.
(vi) The issuance of the Shares to be purchased hereunder is not subject to preemptive or other similar rights arising from transactions by operation of law or otherwise.
(vii) The Subsidiary has been duly incorporated and is validly existing as a corporation and is in good standing under the laws of the jurisdiction of its incorporation, has full corporate power and authority to own, lease and operate its properties and to conduct it business as described in the ordinary course Registration Statement, and is duly qualified as a foreign corporation to transact business and is in good standing in every jurisdiction in which the Company's business requires such qualification and the Subsidiary is not required to be qualified to do business as a foreign corporation in any other jurisdiction; all of businessthe issued and outstanding capital stock of such Subsidiary have been duly authorized and validly issued, in is fully paid and nonassessable and is owned by the businessCompany directly free and clear of any security interest, condition mortgage, pledge, lien, encumbrance, claim or equity.
(financial or otherwise)viii) This Agreement and the Warrant Agreement have been duly authorized by all necessary corporate action on the part of the Company and have been duly executed and delivered by the Company and assuming due authorization, results of operationsexecution and delivery by the Underwriters, shareholders’ equity, properties or prospects are valid and binding agreements of the Company, taken except insofar as a wholeindemnification and contribution provisions may be limited by applicable law or equitable principles, including but not and except as enforceability may be limited to the occurrence of by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally or any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated herebygeneral equitable principles.
(iix) The Underwriters shall Registration Statement has been declared effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) and no stop order suspending the effectiveness of the Registration Statement has been issued under the Act or proceedings therefor have received a lock-up agreement from each Lock-Up Party, duly executed been initiated or are pending or threatened by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IVCommission.
(jx) The Shares are registered under Registration Statement, Prospectus and each amendment or supplement to the Exchange Act andRegistration Statement and Prospectus, as of their respective effective or issue dates (other than the Closing Datefinancial statements and supporting schedules included therein, as to which no opinion need be rendered) complied as to form in all material respects with the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration requirements of the Shares under Act and the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligibleapplicable Rules and Regulations.
(kxi) FINRA shall have confirmed The terms and provisions of the capital stock of the Company conform in all material respects to the description thereof contained in the Prospectus under the caption "Description of Securities."
(xii) The information in the Prospectus under the caption "Description of Securities" to the extent that it constitutes matters of law or legal conclusions, has not raised been reviewed by such counsel and accurately and fairly summarizes in such counsel's opinion the matters described therein and there are no outstanding options, warrants, convertible securities, or other rights to acquire from the Company any objection with respect to capital stock, except as described in the fairness and reasonableness of the underwriting terms and arrangementsRegistration Statement.
(lxiii) No action shall have been taken and no statuteExcept as set forth in the Prospectus, rulethere is not pending or threatened any action, regulation suit, proceeding, inquiry or order shall have been enactedinvestigation, adopted to which the Company or issued its Subsidiary is a party, or to which the property of the Company or its Subsidiary is subject, before or brought by any federalcourt or government agency or body, state which might reasonably be expected to result in any material adverse change in the condition, financial or foreign governmental otherwise, or regulatory authority that wouldin the earnings, as business affairs or business prospects of the Closing DateCompany and its Subsidiary considered as one enterprise, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially which might reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation of this Agreement or the performance by the Company of its obligations hereunder; and all pending legal or governmental proceedings to which the Company or its Subsidiary is a party or that affect any of their respective properties that are not described in the Prospectus, including ordinary routine litigation incidental to the business, could not reasonably be expected to result in a material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or operations business prospects of the CompanyCompany and its Subsidiary considered as one enterprise.
(mxiv) The Company shall have furnished information in the Underwriters Prospectus under the captions ["Business and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded Properties - Legal Proceedings," "- Governmental Regulation" and "- Properties," "Certain Transactions" and "Description of Capital Stock" in the CSRC Filings Prospectus and published the filing results on January 2, 2024 in respect Items 24 and 26 of Part II] of the CSRC Filings on its websiteRegistration Statement to the extent that such items constitute matter of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects, and such notice of acceptance and/or filing results published not having otherwise been rejectedthere are no legal or governmental actions, withdrawn, revoked suits or invalidated.
(o) The proceedings pending or threatened against the Company is not or its Subsidiary that are required to apply for cybersecurity review with be described in the CAC with respect to Prospectus are not described as required by the Company’s proposed overseas listing pursuant to Act or the Revised Cybersecurity Review Measuresapplicable Rules and Regulations.
Appears in 2 contracts
Samples: Underwriting Agreement (Talisman Enterprise Inc), Underwriting Agreement (Talisman Enterprise Inc)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Securities as provided herein shall be pursuant to any Terms Agreement are subject to: (i) to the accuracy of the representations and warranties on the part of the Company herein contained, as to the accuracy of the date hereof and as statements of the Closing Date or the Additional Closing Date, (ii) the absence from Company's officers made in any certificates, opinions, written statements or letters certificate furnished pursuant to the Underwriters or provisions hereof, to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of all of its covenants and other obligations hereunderhereunder and to the following further conditions:
(a) At the applicable Closing Time (i) no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act, no order suspending trading or striking or withdrawing any Securities to be listed on a national securities exchange from listing and registration under the 1934 Act shall be in effect, and no proceedings under the 1933 Act or 1934 Act therefor shall have been initiated or threatened by the Commission, or, with respect to the filing of any Form 8-A, by any national securities exchange, (ii) the rating assigned by any nationally recognized securities rating agency indicated in the applicable Terms Agreement to any debt securities or other obligations of the Company as of the date of the applicable Terms Agreement shall not have been lowered since the execution of such Terms Agreement nor shall any such rating agency have publicly announced that it has placed any obligations of the Company on what is commonly termed a "watch list" for possible downgrading, (iii) any Securities for which application has been made to list on a national securities exchange shall have been approved for listing, subject to official notice of issuance and (iv) each there shall not have come to your attention any facts that would cause you to believe that the Prospectus, together with the applicable Prospectus Supplement, at the time it was required to be delivered to a purchaser of the following additional conditionsSecurities, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading.
(ab) At the applicable Closing Time you shall have received:
(1) The favorable opinion, dated as of the applicable Closing Time, of Xxxxxx X. Xxxxx, Esq., Senior Vice President/Legal, of the Company, or Xxxxxxxx X. Xxxxxxxxxx, Esq., Vice President and General Counsel of the Company, in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Prospectus.
(iii) To the best of such counsel's knowledge, the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualifications and in which failure of the Company to be so qualified and in good standing would have a material adverse effect upon the Company and its subsidiaries considered as a single enterprise.
(iv) This Agreement and the applicable Terms Agreement have been duly authorized, executed and delivered by the Company.
(v) The Indenture has been duly authorized, executed and delivered by the Company and (assuming the Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, or other laws relating to or affecting creditors' rights generally or by general equity principles.
(vi) The Securities are in the form contemplated by the Indenture, have been duly authorized by all necessary corporate action and, when executed and authenticated as specified in the Indenture and delivered against payment of the consideration therefor in accordance with this Agreement, as supplemented by the applicable Terms Agreement, if any, will be valid and binding obligations of the Company, enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, or other laws relating to or affecting creditors' rights generally, or by general equity principles, and each holder of Securities will be entitled to the benefits of the Indenture.
(vii) The statements in the Prospectus under the caption "Description of Debt Securities" and the Prospectus Supplement under the caption "Description of the Notes", insofar as they purport to summarize certain provisions of documents specifically referred to therein, are accurate summaries of such provisions.
(viii) The Indenture is qualified under the 1939 Act.
(ix) The Registration Statement shall have become is effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the 1933 Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating and, to the description best of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closingsuch counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no under the 1933 Act or proceedings therefor have been initiated or threatened by the Commission.
(x) At the time the Registration Statement became effective, the Registration Statement (viother than the financial statements and other financial or statistical data included or incorporated by reference therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act, the 1939 Act and the regulations under each of those Acts.
(xi) To the best of such counsel's knowledge, there are no pro forma legal or as adjusted financial statements that governmental proceedings pending or threatened which are required to be included disclosed in the Registration Statement, other than those disclosed therein, and all pending legal or governmental proceedings which the Company or any subsidiary is a party or of which any of their property is the subject which are not described in the Prospectus, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xii) To the best of such counsel's knowledge and information, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement and or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, the Prospectus pursuant to the Regulations which descriptions thereof or references thereto are not so includedcorrect, and (vii) subsequent to the respective dates as of which information is given and, except for certain minor matters which, either individually or in the Registration Statement and aggregate, will not or do not have a material adverse effect on the ProspectusCompany or its business, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions no default exists in the ordinary course due performance or observance of businessany material obligation, agreement, covenant or condition contained in any contract, indenture, loan agreement, note, lease or other instrument so described, referred to, filed or incorporated by reference.
(exiii) At each No consent, approval, authorization, or order of any court or governmental authority or agency is required in connection with the sale of the Closing DateSecurities, except such as may be required under the 1933 Act, the Underwriters shall have received a certificate of 1939 Act, the Company signed by the Secretary of the Company (the “Secretary’s Certificate”)1933 Act Regulations or state securities laws; and, substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as best of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions counsel's knowledge and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement, the applicable Terms Agreement and prior to the Closing Date orIndenture and the consummation of the transactions contemplated herein and therein will not conflict with or constitute a breach of, if earlieror default under, the dates as of which information is given or result in the Registration Statement (exclusive creation or imposition of any amendment thereof) and the Prospectus (exclusive of lien, charge or encumbrance upon any supplement thereto), there shall not have been any change in the Ordinary Shares property or long-term debt assets of the Company pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument known to such counsel and to which the Company is a party or by which it may be bound or to which any of the property or assets of the Company is subject, or any change law, administrative regulation or development involving a changeadministrative or court decree known to such counsel to be applicable to the Company of any court or governmental agency, whether authority or not arising from transactions in the ordinary course of business, in the business, condition (financial body or otherwise), results of operations, shareholders’ equity, properties or prospects of any arbitrator having jurisdiction over the Company, taken except that counsel need not express an opinion as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war state securities laws or terrorism or other calamity, the effect of which, regulations; nor will such action result in any such case described above, is, in the reasonable judgment violation of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as provisions of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, charter or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations by- laws of the Company.
(mxiv) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing Each document filed pursuant to the Revised Cybersecurity Review Measures1934 Act and incorporated by reference in the Prospectus (except for the financial statements and other financial or statistical data included therein or omitted therefrom, as to which counsel need not comment), appeared on its face to comply, when filed, as to form in all material respects with the 1934 Act and the 1934 Act Regulations. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of the State of New York, to the extent deemed proper and specified in such opinion, upon the opinion of Xxxxx & Xxxx, counsel for the Underwriters, delivered pursuant to subsection (b)(2) hereof and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials.
Appears in 2 contracts
Samples: Underwriting Agreement (Comdisco Inc), Underwriting Agreement (Comdisco Inc)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder, as to purchase and pay for the Securities as provided herein Shares to be delivered at each Time of Delivery, shall be subject to: (i) subject, in their discretion, to the accuracy of the condition that all representations and warranties and other statements of the Company herein contained, as and of the date hereof Selling Stockholder herein are, at and as of such Time of Delivery, true and correct, the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by condition that the Company and the Selling Stockholder shall have performed all of its their respective obligations hereunderhereunder theretofore to be performed, and (iv) each of the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time periodperiod prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or Statement, any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure PackagePreliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings proceeding for the issuance of such an order that purpose shall have been initiated or threatenedthreatened by the Commission; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; and all requests for additional information on the part of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ Canaccord Xxxxx Inc.’s reasonable satisfaction.;
(b) The Underwriters shall not have reasonably determinedMintz, Levin, Cohn, Ferris, Glovsky and advised the CompanyPopeo, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLPP.C., U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinionUnderwriters such opinion or opinions, addressed dated such Time of Delivery, with respect to this Agreement, the Registration Statement, the Pricing Disclosure Package, the Prospectus and other related matters as the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Officesrequest;
(c) Garrigues, PRC S.L.P., Spanish counsel to the Underwriters, shall have furnished to the Representative its written opinionUnderwriters such opinion or opinions, addressed dated such Time of Delivery, with respect to this Agreement, the Registration Statement, the Pricing Disclosure Package, the Prospectus and other related matters as the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.reasonably request;
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”)Squire, substantially in the form attached hereto as Annex I and dated as of the Closing DateXxxxxxx & Xxxxxxx L.L.P., U.S. counsel to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfiedCompany, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the CompanyUnderwriters their written opinion, dated the respective dates such Time of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such informationDelivery, in form and substance reasonably satisfactory to the RepresentativeUnderwriters, substantially with respect to the matters set forth in the form attached hereto as Xxxxx XXX.Annex I-A hereto;
(he) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date orXxxxx Xxxxxx Xxxx, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects Internal Legal Counsel of the Company, taken as a whole, including but not limited shall have furnished to the occurrence Underwriters a written opinion, dated such Time of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of whichDelivery, in any such case described above, is, in the reasonable judgment of form and substance reasonably satisfactory to the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.matters set forth in Annex I-B hereto;
(lf) No action shall have been taken and no statuteSquire, ruleXxxxxxx & Xxxxxxx L.L.P., regulation or order shall have been enactedU.S. counsel to the Selling Stockholder, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished to the Underwriters their written opinion, dated such Time of Delivery, in form and substance reasonably satisfactory to the Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant matters set forth in Annex II-A hereto;
(g) Xxxxxx Xxxxx Xxxxxxx xx Xxxxxxx, Internal Counsel to the Revised Cybersecurity Review Measures.Selling Stockholder, shall have furnished to the Underwriters a written opinion, dated such Time of Delivery, in form and substance reasonably satisfactory to the Underwriters, with respect to the matters set forth in Annex II-B hereto;
Appears in 2 contracts
Samples: Underwriting Agreement (Telvent Git S A), Underwriting Agreement (Telvent Git S A)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Securities Shares and Warrants or Option Securities, as the case may be, as provided herein shall be subject to: (i) the accuracy of the representations and warranties of the Company herein contained, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters Representative or to Underwriters’ Counsel pursuant to this Section 7 6 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and (iv) each of the following additional conditions. For purposes of this Section 6, the terms “Closing Date” and “Closing” shall refer to the Closing Date for the Shares and Warrants or Option Securities, as the case may be, and each of the foregoing and following conditions must be satisfied as of each Closing.
(a) The Registration Statement shall have become effective and all necessary regulatory and or listing approvals shall have been received not later than 5:30 P.M.p.m., Eastern TimeNew York time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the UnderwritersRepresentative. If the Company shall have elected to rely upon Rule 430A under the Securities Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof hereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and or the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests any request of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ Representative’s satisfaction; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Underwriters Representative shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package Statement or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, thereto contains an untrue statement of fact which, in the Underwriters’ Representative’s reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ Representative’s reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters Representative shall have received, in form satisfactory received the favorable written opinions (and as to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & RiegelsOption Closing Date, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwritersif any, (ii) legal opinions and a bring-down opinion), including, without limitation, a negative assurance letter from DLA Piper UK LLPof (a) Xxxxxxxxx Chediak Xxxxx Xxxxxxx Xxxxxx, U.S. the legal counsel for the Company, (b) intellectual property legal counsel and (c) regulatory legal counsel, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated in the Closing Date or any Additional Closing Date, forms attached hereto as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the RepresentativeAnnex II.
(d) The Underwriters Representative shall have received certificates a certificate of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”)Company, substantially in the form attached hereto as Annex I and dated as of the each Closing Date, Date to the effect that: (i) the conditions condition set forth in subsection (a) of this Section 7 have 6 has been satisfied, (ii) as of the date hereof and as of the applicable Closing Date, the representations and warranties of the Company set forth in Section Sections 1 and 2 hereof are accurate, (iii) as of the applicable Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has and the Subsidiaries have not sustained any material loss or interference with its their respective businesses, whether or not covered by insurance, or from any labor dispute or disruption or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included or incorporated by reference in the Registration Statement and the Prospectus pursuant to the Rules and Regulations which are not so includedincluded or incorporated by reference, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, Prospectus there has not been any Material Adverse Change or any development involving event that is reasonably likely to result in a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters Representative shall have received a “cold comfort” letter from Xxxxxx Asia CPAs LLP BDO (the “Auditor Comfort Letter”and as to any Option Closing Date, a bring-down letter) as of each such date, the date of delivery and addressed to the Underwriters and in form and substance satisfactory to the Underwriters Representative and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company and its Subsidiaries within the meaning of the Securities Act and all applicable the Rules and Regulations, and stating, as of such the date of delivery (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to the date of such dateletter), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(hf) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any post-effective amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares capital stock or long-term debt of the Company or any Subsidiary or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the CompanyCompany and the Subsidiaries, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable sole judgment of the UnderwritersRepresentative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale Offering on the terms and in the manner contemplated in the Prospectus (exclusive of Securities or Offering as contemplated herebyany supplement).
(ig) The Underwriters Representative shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.I.
(jh) The Shares Common Stock and Warrants are registered under the Exchange Act and, as of the Closing Date, the Shares and Warrants shall be listed and admitted and authorized for trading on the Nasdaq Global Capital Market and satisfactory evidence of such action shall have been provided to the UnderwritersRepresentative. The Company shall have taken no action designed to terminateto, or likely to have the effect of terminating, terminating the registration of the Shares Common Stock and Warrants under the Exchange Act or delisting or suspending the Shares from trading on the Common Stock and Warrants from the Nasdaq Global Capital Market, nor will has the Company have received any information suggesting that the Commission or the Nasdaq Global Capital Market is contemplating terminating such registration or listing. The Firm Shares Shares, the Warrants, the Representative’s Warrants and shares of Common Stock underlying the Warrants and the Representative’s Warrants shall be DTC eligible.
(ki) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements. In addition, the Company shall, if requested by the Representative, make or authorize the Underwriters’ Counsel to make on the Company’s behalf, an Issuer Filing with the FINRA Corporate Financing Department pursuant to FINRA Rule 2710 with respect to the Registration Statement and pay all filing fees required in connection therewith.
(lj) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(mk) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or other documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect . If any of the CSRC Filings on its websiteconditions specified in this Section 6 shall not have been fulfilled when and as required by this Agreement, and such notice or if any of acceptance and/or filing results published not having otherwise been rejectedthe certificates, withdrawnopinions, revoked written statements or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect letters furnished to the Company’s proposed overseas listing Representative or to Underwriters’ Counsel pursuant to this Section 6 shall not be reasonably satisfactory in form and substance to the Revised Cybersecurity Review MeasuresRepresentative and to Underwriters’ Counsel, all obligations of the Underwriters 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 by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
Appears in 2 contracts
Samples: Underwriting Agreement (RiceBran Technologies), Underwriting Agreement (RiceBran Technologies)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Firm Securities or the Option Securities, as the case may be, as provided herein shall be subject to: (i) the accuracy of the representations and warranties of the Company herein contained, as of the date hereof and as of the Closing Date or the Additional and each Option Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters Representative or to Underwriters’ Counsel pursuant to this Section 7 6 of any material misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and (iv) each of the following additional conditions.
(a) The Registration Statement shall have become effective and all necessary regulatory and or listing approvals shall have been received not later than 5:30 P.M.p.m., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the UnderwritersRepresentative. If the Company shall have elected to rely upon Rule 430A under the Securities Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof hereof and a form of the Prospectus containing information relating to the description of the Transaction Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and or the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or or, to the Company’s knowledge, threatened; all requests any request of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ Representative’s satisfaction; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Underwriters Representative shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ Representative’s reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ Representative’s reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading; provided, however, that if in the Representative’s opinion such deficiency is curable, the Representative shall have given the Company reasonable notice of such deficiency and a reasonable chance to cure such deficiency.
(c) The Underwriters Representative shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of : (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions written opinion and negative assurance letter from DLA Piper UK of Xxxx Xxxxxxxx LLP, U.S. legal counsel for the Company, dated as of the Closing Date and each Option Closing Date, as applicable, and addressed to the UnderwritersRepresentative substantially in the form attached hereto as Annex II, and (iiiii) legal opinions from Xxx Xxx Law Officesthe written opinion of Xxxxxx Martens Xxxxx & Bear, PRC LLP, intellectual property legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined Date and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional each Option Closing Date, as the case may beapplicable, and (ii) negative assurance letter, addressed to the Underwriters and dated Representative substantially in the Closing Date or any Additional Closing Date, form attached hereto as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the RepresentativeAnnex III.
(d) The Underwriters Representative shall have received certificates a certificate of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”)Company, substantially in the form attached hereto as Annex I and dated as of the Closing Date, Date and each Option Closing Date to the effect that: (i) the conditions condition set forth in subsection (a) of this Section 7 have 6 has been satisfied, (ii) as of the date hereof and as of the applicable Closing Date or Option Closing Date, the representations and warranties of the Company set forth in Section 2 hereof this Agreement are accurate, (iii) as of the applicable Closing Date or Option Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businessesbusiness, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereof has been issued and no proceedings therefor have been initiated or or, to the Company’s knowledge, threatened by the Commission, and (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, Prospectus there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of businessEffect.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement Agreement, the Closing Date and on the each Option Closing Date, the Underwriters Representative shall have received a “cold comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, the date of delivery and addressed to the Underwriters Representative and in form and substance satisfactory to the Underwriters Representative and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Securities Act and all applicable the Rules and Regulations, and stating, as of such the date of delivery (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to the date of such dateletter), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement and the Prospectus covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(hf) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of and any amendment thereof) and the Prospectus (exclusive of any supplement thereto)Option Closing Date, there shall not have been any change in the Ordinary Shares capital stock or long-term debt of the Company or any change or development involving that would cause, or reasonably be expected to cause, a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a wholeMaterial Adverse Effect, including but not limited to to, from the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable sole judgment of the UnderwritersRepresentative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale Offering on the terms and in the manner contemplated in the Prospectus (exclusive of Securities or Offering as contemplated herebyany supplement).
(ig) The Underwriters Prior to the execution and delivery of this Agreement, the Representative shall have received a lockLock-up agreement Up Agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached hereto as Annex IV.I.
(jh) The Shares are Common Stock is registered under the Exchange Act and, as of the Closing Date and each Option Closing Date, the Firm Shares and Option Shares, as applicable, shall be listed and admitted and authorized for trading on the Nasdaq Global NASDAQ Capital Market and satisfactory evidence of such action shall have been provided to the UnderwritersRepresentative. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Firm Shares or Option Shares under the Exchange Act or designed to delist or suspend, or likely to have the effect of delisting or suspending the Shares suspending, from trading on its Common Stock from the Nasdaq Global NASDAQ Capital Market, nor will has the Company have received any written information suggesting that the Commission or the Nasdaq Global NASDAQ Capital Market is contemplating terminating such registration or listing. The Firm Shares Transaction Securities shall be DTC eligible.
(ki) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(lj) 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 Closing Date or any Option Closing Date, prevent the issuance or sale of the any Firm Securities or Option Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date or any Option Closing Date, prevent the issuance or sale of the any Transaction Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(mk) The Company shall have furnished the Underwriters Representative and Underwriters’ Counsel with a Certificate of Good Standing for the Company certified by the Secretary of State of the State of Delaware dated as of a date within five (5) days of the Closing Date and or the Option Closing Date, as applicable.
(l) The Company shall have furnished the Representative and Underwriters’ Counsel with such other certificates, opinions or other documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect . If any of the CSRC Filings on its websiteconditions specified in this Section 6 shall not have been fulfilled when and as required by this Agreement, and such notice or if any of acceptance and/or filing results published not having otherwise been rejectedthe certificates, withdrawnopinions, revoked written statements or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect letters furnished to the Company’s proposed overseas listing Representative or to Underwriters’ Counsel pursuant to this Section 6 shall not be reasonably satisfactory in form and substance to the Revised Cybersecurity Review MeasuresRepresentative and to Underwriters’ Counsel, all obligations of the Underwriters 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 by telephone. Any such telephonic notice shall be confirmed promptly thereafter in writing.
Appears in 2 contracts
Samples: Underwriting Agreement (Viking Therapeutics, Inc.), Underwriting Agreement (Viking Therapeutics, Inc.)
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters to purchase and pay for the Securities Firm Shares and the Additional Shares, as provided herein herein, shall be subject to: (i) to the accuracy of the representations and warranties of the Company and the Selling Stockholders herein contained, as of the date hereof and as of the Closing Date or (for purposes of this Section 8, “Closing Date” shall refer to the Closing Date for the Firm Shares and for the Selling Stockholders any Additional Closing Date, (ii) if different, for the absence from any certificatesAdditional Shares), opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of all of its obligations hereunder, and (iv) to each of the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(bSection 4(a) within the applicable time periodhereof; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereofpost-effective amendment thereto, or any amendment thereof, nor and no stop order suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Preliminary Prospectus, any Issuer Free Writing Prospectus or otherwise) the Prospectus, shall have been issued by the Commission and no proceedings therefor shall have been initiated or, threatened by the Commission; all requests for additional information on the part of the Commission shall have been complied with to the UnderwritersLead Managers’ reasonable satisfaction; if the Company has elected to rely on Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m. (Washington, D.C. time) on the date of this Agreement or at such later time and date as shall have been consented to by the Lead Managers in writing; and all necessary regulatory or stock exchange approvals shall have been received.
(b) The Underwriters At the Closing Date the Lead Managers, on behalf of the Underwriters, shall not have reasonably determinedreceived the written opinion of Bxxxx Bxxxx L.L.P., and advised counsel for the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, in the form of Annex I hereto.
(iic) legal opinions and negative assurance letter from DLA Piper UK At the Closing Date the Lead Managers, on behalf of the Underwriters, shall have received the written opinion of Paul, Hastings, Jxxxxxxx & Wxxxxx LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and in the form of Annex II hereto.
(iiid) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of At the Closing Date. Each Date the Lead Managers, on behalf of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished received the written opinion of Pxxxxx Bxxxx LLP., counsel for Royal Street, dated the Closing Date and addressed to the Representative its Underwriters, in the form of Annex III hereto.
(ie) At the Closing Date, the Lead Managers, on behalf of the Underwriters, shall have received the written opinionopinion of Vxxxxx & Exxxxx LLP, counsel for each of the Selling Stockholders other than M/C Venture Partners, et al, Madison Dearborn Capital Partners IV, L.P. and TA Associates, et al, each dated the Closing Date, addressed to the Underwriters Underwriters, in the form of Annex IV.
(f) At the Closing Date, the Lead Managers, on behalf of the Underwriters, shall have received the written opinion of Mayer, Brown, Rxxx & Maw LLP, counsel for M/C Venture Partners, each dated the Closing Date, addressed to the Underwriters, in the form of Annex V.
(g) At the Closing Date, the Lead Managers, on behalf of the Underwriters, shall have received the written opinion of Gxxxxxx Procter LLP, counsel for Madison Dearborn Capital Partners IV, L.P. and TA Associates, et al, each dated the Closing Date, addressed to the Underwriters, in the form of Annex VI.
(h) At the Closing Date, the Lead Managers, on behalf of the Underwriters, shall have received the written opinion of Underwriters’ Counsel, dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters Underwriters, in form and dated substance reasonably satisfactory to the Closing Date or any Additional Closing DateLead Managers, with respect to the issuance and sale of the Shares, the Registration Statement, the Pricing Disclosure Package, the Prospectus and such other matters as the case Lead Managers may berequire, and the Company shall have furnished to such counsel Underwriters’ Counsel such documents and information as such counsel they may reasonably request to enable for the purpose of enabling them to pass on upon such matters. XxxXxxxxx Law Offices.
(i) At the Closing Date the Lead Managers, PRC counsel to on behalf of the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates a certificate of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”)Company, substantially in the form attached hereto as Annex I and dated as of the Closing Date, to in the effect that: form of Annex VII hereto.
(ij) At the conditions set forth in subsection (a) of time this Section 7 Agreement is executed and at the Closing Date, the Lead Managers shall have been satisfiedreceived a comfort letter, (ii) from Deloitte & Touche LLP, independent public accountant for the Company, dated, respectively, as of the date hereof of this Agreement and as of the Closing Date, addressed to the representations Underwriters and warranties in the form of Annex VIII.
(i) Neither the Company, the Subsidiaries, nor to the Company’s knowledge after due inquiry, Royal Street shall have sustained, since the date of the Company set forth latest audited financial statements included in Section 2 hereof are accuratethe Pricing Prospectus, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businessesbusiness or properties from fire, whether explosion, flood, hurricane, accident or not covered by insuranceother calamity, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or other than as adjusted financial statements that are required to be included set forth in the Registration Statement and the Pricing Prospectus pursuant to the Regulations which are not so included, (exclusive of any supplement thereto); and (viiii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereofthereto subsequent to the date hereof) and or the Pricing Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares capital stock or long-term debt or material increase in the short-term debt of the Company or any Subsidiary or any change or any development involving a change, whether or not arising from transactions in the ordinary course of business, change in the business, condition (financial or otherwise)condition, results of operations, shareholders’ equity, properties or prospects of the Company, Royal Street and the Subsidiaries, individually or taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the UnderwritersLead Managers, so material and adverse as to make it impracticable or inadvisable to proceed with the sale Offering on the terms and in the manner contemplated in the Pricing Prospectus (exclusive of Securities or Offering as contemplated herebyany such supplement).
(l) On or after the Applicable Time, (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or the Company’s financial strength or claims paying ability by any “nationally recognized statistical rating organization”, as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or the Company’s financial strength or claims paying ability.
(m) The Underwriters Lead Managers shall have received a duly executed lock-up agreement from each Lock-Up Partyperson who is a director or officer of the Company, duly executed by the applicable Lock-Up Partyeach Selling Stockholder and each other shareholder and other person or entity listed on Schedule IV hereto, in each case substantially in the form attached hereto as Annex IVIX.
(jn) The Shares are registered under the Exchange Act and, as of At the Closing Date, the Shares shall be listed and admitted and authorized have been approved for trading listing upon notice of issuance on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligibleNYSE.
(ko) FINRA Prior to or by the Closing Date, the NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangementsarrangements for the Offering.
(lp) 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 At the Closing Date, prevent the issuance or sale you shall have received a certificate of an authorized representative of the Securities; and no injunction or order of any federalSelling Stockholders, state or foreign court shall have been issued that would, as of dated the Closing Date, prevent to the issuance or sale effect that the representations and warranties of the Securities or materially Selling Stockholders set forth in Section 2 hereof are accurate and adversely affect or potentially materially and adversely affect the business or operations that each of the CompanySelling Stockholders has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
(mq) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or other documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect . If any of the CSRC Filings on its websiteconditions specified in this Section 8 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 you or to Underwriters’ Counsel pursuant to this Section 8 shall not be satisfactory in form and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect substance to the Company’s proposed overseas listing pursuant Lead Managers and to Underwriters’ Counsel, all obligations of the Underwriters hereunder may be cancelled by the Lead Managers at, or at any time prior to, the Closing Date and the obligations of the Underwriters to purchase the Additional Shares may be cancelled by the Lead Managers at, or at any time prior to, the Additional Closing Date. Notice of such cancellation shall be given to the Revised Cybersecurity Review MeasuresCompany in writing or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
Appears in 2 contracts
Samples: Underwriting Agreement (Metropcs Communications Inc), Underwriting Agreement (Metropcs Communications Inc)
Conditions of Underwriters’ Obligations. The obligations obligation of the Underwriters each Underwriter to purchase and pay for the Securities Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as provided herein shall be to which it exercises its right to purchase under Section 5 on an Option Closing Date, is subject to: (i) at the date hereof, the Closing Date and any Option Closing Date to the continuing accuracy and fulfillment of the representations and warranties of the Company herein containedand the Selling Shareholders, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company and the Selling Shareholders of its their covenants and obligations hereunder, and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective Preliminary Prospectus and all necessary regulatory and listing approvals the Prospectus shall have been received not later than 5:30 filed with the SEC pursuant to Rule 424(b) of the Regulations within the applicable time period prescribed for such filing by the Regulations. The Company shall have filed any material required to be filed by the Company with the SEC in the manner and within the time period required by Rule 433 of the Regulations, including any Issuer Free Writing Prospectus and any Other Free Writing Prospectus.
(b) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the SEC in compliance with Rule 462(b) by 10:00 P.M., Eastern TimeWashington D.C. time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected at the time of filing either pay to rely upon the SEC the filing fee for the Rule 430A 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b.
(c) within the applicable time period; and, at On or prior to the Closing Date and or any Option Closing Date, as the actual time of the Closingcase may be, no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including any document incorporated by reference therein), the 462(b) Registration or any part thereof, post-effective amendment to the Registration Statement or the sale of any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus Shares shall have been issued; issued under the Act or any state or foreign securities law, and no proceedings for the issuance of such an order that purpose shall have been initiated or threatened; all requests shall be pending or, to the Representative’s knowledge or the knowledge of the Commission Company, shall be contemplated by the SEC or by any authority in any state in which the Representative offers the Shares. Any request on the part of the SEC or any state or foreign securities authority for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of counsel for the Underwriters’ satisfaction.
(bd) The Underwriters shall not have reasonably determinedAll corporate proceedings and other matters incident to the authorization, form and advised validity of this Agreement, the Company, that Shares and the form of the Registration Statement, the General Disclosure Package and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriters. The Company and the Selling Shareholders shall have furnished to such counsel all documents and information that they may have reasonably requested to enable them to pass upon such matters. The Representative shall have received from the Underwriters’ counsel, Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Representative individually and as representative of the Underwriters, which opinion shall be satisfactory in all respects to the Representative.
(e) The Representative shall have received a copy of an executed Lock-up Agreement from each of the persons listed on Schedule V hereto, and the Company shall have issued appropriate stop transfer instructions to the transfer agent and shall have delivered a copy of such instructions to the Representative.
(f) On the Closing Date and any Option Closing Date, there shall have been delivered to the Representative the opinion of Xxxxxxx Xxxxxxx & Xxxxxx PLL, counsel for the Company and the Selling Shareholders, dated as of such date and addressed to the Representative individually and as representative of the Underwriters to the effect set forth in Exhibit B hereto or to such effect as is otherwise reasonably satisfactory to the Representative.
(g) At the Closing Date and any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Disclosure Package and the Prospectus and any amendments or supplements thereto shall contain all statements that are required to be stated therein in accordance with the Act and Regulations shall conform to the requirements of the Act and the Regulations in all material respects, and none of the Registration Statement nor any post-effective amendment thereto, the Disclosure Package or the Prospectus, Prospectus and any amendments or supplements thereto shall contain any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of a material fact which, in the Underwriters’ reasonable opinion, is material, or omits omit to state a any material fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein therein, in light of the circumstances in which they are made, not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, ; (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for since the Company, dated respective dates as of which information is given in the Closing Date Registration Statement, the Disclosure Package and addressed to the UnderwritersProspectus and any amendments or supplements thereto, and (iii) legal opinions from Xxx Xxx Law Officesexcept as otherwise stated therein, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion there shall have been provided to no material adverse change in the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer Business Conditions of the Company (or the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions Subsidiaries from that set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businessestherein, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, arising in the ordinary course of business; (viii) no stop order suspending since the effectiveness respective dates as of which information is given in the Registration Statement Statement, the Disclosure Package and the Prospectus or any amendment thereof has been issued and no proceedings therefor or supplement thereto, there shall have been initiated no event or threatened transaction, contract or agreement entered into by the Commission, (vi) there are no pro forma Company or any of the Subsidiaries other than in the ordinary course of business and as adjusted financial statements that are required to be included set forth in the Registration Statement and Statement, the Prospectus pursuant Disclosure Package or the Prospectus, that has not been, but would be required to be, set forth in the Regulations which are not so includedRegistration Statement, and the Disclosure Package or the Prospectus; (viiiv) subsequent to since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the Disclosure Package and the Prospectus and any amendments or supplements thereto, there shall have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which the Company or any of the Subsidiaries is a party, that has not been, but would be required to be set forth in the Registration Statement the Disclosure Package or the Prospectus and which would have a Material Adverse Effect; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against the Company or any of the Subsidiaries that would be required to be set forth in the Disclosure Package or the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto other than as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulationsset forth therein, and stating, except as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given set forth in the Prospectus, as no proceedings (other than proceedings pending before a public utilities commission on the date hereof) shall be pending or threatened against or directly affecting the Company or any of the Subsidiaries before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letterMaterial Adverse Effect.
(gh) On The Representative shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company dated, as of the date of this Agreement and on the Closing Date or Option Closing Date, as the case may be, and addressed to the Representative individually and as representative of the Underwriters to the effect that (i) the representations and warranties of the Company in this Agreement are true and correct, as if made at and as of the Closing Date or the Option Closing Date, as the case may be, and that the Company has complied with all the agreements, fulfilled all the covenants and satisfied all the conditions on its part to be performed, fulfilled or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any amendments or supplements thereto, and the conditions set forth in Section 9 hereof have been satisfied.
(i) At the time this Agreement is executed and at the Closing Date and any Option Closing Date, as the case may be, ParenteBeard LLC shall have furnished to the Representative, a certificate Representative on behalf of the Underwriters, at the request of the Company, letters, dated the respective dates of delivery thereof thereof, and addressed to the Representative on behalf of the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the RepresentativeRepresentative in all respects (including, substantially without limitation, the non-material nature of the changes or decreases, if any, referred to in the form attached hereto as Xxxxx XXX.clause (iii) below):
(hi) Subsequent confirming it is an independent certified public accounting firm within the meaning of the Act and the Regulations, and stating that the section of the Registration Statement under the caption “Experts” is correct insofar as it relates to the execution and delivery of this Agreement and prior to the Closing Date orit;
(ii) stating that, if earlierin its opinion, the dates as consolidated financial statements, schedules and notes of which information is given the Company audited by it and included in the Registration Statement (exclusive comply as to form in all material respects with the applicable accounting requirements of any amendment thereof) the Act and the Prospectus Regulations;
(exclusive iii) stating that, on the basis of any supplement theretospecified procedures, which included a reading of the latest available unaudited interim consolidated financial statements of the Company (with an indication of the date of the latest available unaudited interim financial statements), a reading of the minutes of the meetings of the shareholders and the Boards of Directors of the Company and the Subsidiaries and the Audit, Corporate Governance and Nominating, and Compensation Committees of such Boards and inquiries to certain officers and other employees of the Company and the Subsidiaries responsible for operational, financial and accounting matters and other specified procedures and inquiries, nothing has come to their attention that, except as specified in their letter, would cause them to believe (x) that at a specified date not more than five business days prior to the date of such letter, there shall not have been was any change in the Ordinary Shares capital stock or increase in long-term debt of the Company (other than increases that the Registration Statement disclosed have occurred or may occur), in each case, as compared with the amounts shown in the Company’s December 31, 2012 audited balance sheets or any change or development involving a change, whether or not arising from transactions later dated Company balance sheet included in the ordinary course Registration Statement or (y) that for the periods from and including January 1, 2013 to the date of business, in the business, condition (latest available unaudited financial or otherwise), results of operations, shareholders’ equity, properties or prospects statements of the Company, taken if any, there were any decreases, as a whole, including but not limited compared to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, corresponding periods in the effect of whichprior year, in any such case described aboveoperating income or total or per share amounts of net income, isexcept in all instances for changes, in decreases or increases that the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable Registration Statement discloses have occurred or inadvisable to proceed with the sale of Securities or Offering as contemplated herebymay occur.
(iiv) The Underwriters shall stating that they have received a lock-up agreement compared specific dollar amounts (or percentages derived from each Lock-Up Partysuch dollar amounts), duly executed numbers of shares and other numerical data and financial information set forth in the Registration Statement that have been reasonably specified by the applicable Lock-Up Party, Representative prior to the date of this Agreement (in each case substantially to the extent that such dollar amounts, percentages and other information is derived from the general accounting records subject to the internal controls of the Company’s or the Subsidiaries’ accounting systems, or has been derived directly from such accounting records by analysis or comparison or has been derived from other records and analyses maintained or prepared by the Company or the Subsidiaries) with the results obtained from the application of readings, inquiries and other appropriate procedures set forth in the form attached letter, and found them to be in agreement. All financial statements and schedules included in material incorporated by reference into the Prospectus shall be deemed included in the Registration Statement for purposes of this subsection.
(v) provided, that the letter delivered on the Closing Date or the Option Closing Date, as Annex IVthe case may be, shall use a “cut-off” date no more than five business days prior to such Closing Date or such Option Closing Date, as the case may be.
(j) The Shares are registered under All corporate and other proceedings and other matters incident to the Exchange Act andauthorization, as form and validity of this Agreement and the form of the Closing Date, Registration Statement and Prospectus and all other legal matters related to this Agreement and the Shares transactions contemplated hereby shall be listed and admitted and authorized for trading on the Nasdaq Global Market and reasonably satisfactory evidence of such action shall have been provided in all respects to counsel to the Underwriters. The Company shall have taken no action designed furnished to terminate, or likely such counsel all documents and information that they shall have reasonably requested to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating enable them to pass upon such registration or listing. The Firm Shares shall be DTC eligiblematters.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) No action The Shares 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 included for listing on the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the CompanyNYSE MKT.
(m) The Company At the Closing Date and any Option Closing Date, the Representative shall have been furnished the Underwriters such additional documents, information and Underwriters’ Counsel with such other certificates, opinions or documents certificates as they may shall have reasonably requested.
(n) . All such opinions, certificates, letters and documents shall be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Representative and the Underwriters’ counsel. The CSRC shall have concluded the CSRC Filings Company and published the filing results on January 2, 2024 in respect each of the CSRC Filings on its websiteSelling Shareholders, respectively, shall furnish the Representative with such conformed copies of such opinions, certificates, letters and such notice of acceptance and/or filing results published not having otherwise been rejectedother documents as it shall reasonably request. If any condition to the Underwriters’ obligations hereunder to be fulfilled prior to or at the Closing Date or any Option Closing Date, withdrawnas the case may be, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with fulfilled, the CAC Representative on behalf of the Underwriters may terminate this Agreement with respect to the Company’s proposed overseas listing pursuant Closing Date or such Option Closing Date, as applicable, or, if it so elects, waive any such conditions which have not been fulfilled or extend the time for their fulfillment. Any such termination shall be without liability of the Underwriters to the Revised Cybersecurity Review MeasuresCompany and Selling Shareholders.
Appears in 2 contracts
Samples: Underwriting Agreement (Osborne Richard M), Underwriting Agreement (Gas Natural Inc.)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Securities Firm Shares and the Additional Shares, as provided herein herein, shall be subject to: (i) to the accuracy of the representations and warranties of the Company each party herein contained, as of the date hereof and as of the Closing Date or (for purposes of this Section 6 “Closing Date” shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, (ii) if different, for the Additional Shares), to the absence from any certificates, opinions, written statements or letters furnished to the Underwriters you or to Underwriters’ Counsel pursuant to this Section 7 6 of any misstatement or omission, (iii) to the performance by the Company each party of its obligations hereunder, and (iv) to each of the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary foreign and domestic regulatory and listing or stock exchange approvals shall have been received not later than 5:30 P.M., Eastern Time, New York time on the date of this Agreement, if pricing pursuant to Rule 430A, or 12:00 P.M., New York time on the date an amendment to the Registration Statement containing the public offering price has been filed with the Commission, if pricing pursuant to a pricing amendment, or at such later time and date as shall have been consented to in writing by the Underwriters. If Bear Xxxxxxx; if the Company shall have elected to rely upon Rule 430A or Rule 434 under the Securities Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof Section 4(a)(i) hereof and a form of the Prospectus containing information relating to the description of the Securities Shares and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any post-effective amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus thereof shall have been issued; issued and no proceedings for the issuance of such an order therefor shall have been initiated or threatened; all requests of threatened by the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfactionCommission.
(b) The Underwriters At the Closing Date you shall not have reasonably determinedreceived the favorable written opinion of Pillsbury Winthrop LLP, and advised counsel for the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, Underwriters in the form attached hereto as Annex I.
(iic) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for All proceedings taken in connection with the Company, dated as sale of the Closing Date Firm Shares and addressed the Additional Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Bear Xxxxxxx and to Underwriters’ Counsel, and (iii) legal opinions the Underwriters shall have received from Xxx Xxx Law Offices, PRC legal counsel to the CompanyUnderwriters’ Counsel a favorable written opinion, dated as of the Closing Date. Each , with respect to the incorporation of the opinion shall provide assurance to parties that Company, the legal aspects issuance and sale of the transaction have been properly examined Shares, the Registration Statement and deemed compliant with applicable laws, regulations, the Prospectus and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, other related matters as the case Bear Xxxxxxx may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may berequire, and the Company shall have furnished to such counsel Underwriters’ Counsel such documents and information as such counsel they may reasonably request to enable for the purpose of enabling them to pass on upon such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters At the Closing Date you shall have received certificates the favorable written opinion of the respective general counsel of MiTAC International Corporation (“MiTAC International”), UPC Technology Corporation and Synnex Technology International on behalf of the applicable Selling Stockholder, dated the Closing Date and addressed to the Underwriters in the form attached hereto as Annex II.
(e) At the Closing Date you shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”)Company, substantially in the form attached hereto as Annex I and dated as of the Closing Date, Date to the effect that: that (i) the conditions condition set forth in subsection (a) of this Section 7 have 6 has been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 1(a) hereof are accurate, (iii) as of the Closing Date, Date all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has and the Subsidiaries have not sustained any material loss or interference with its businessestheir respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included or incorporated by reference in the Registration Statement and the Prospectus pursuant to the Rules and Regulations which are that have not so included, been included or incorporated by reference as required and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, Prospectus there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(ef) At the Closing Date you shall have received a written certificate of each Selling Stockholder executed by the Attorney-in-Fact, dated the Closing Date, to the effect that (i) as of the date hereof and as of the Closing Date, the Underwriters representations and warranties of such Selling Stockholder set forth in Section 1(b) hereof are accurate and (ii) as of the Closing Date all agreements, conditions and obligations of such Selling Stockholder to be performed or complied with hereunder on or prior thereto have been duly performed or complied with.
(g) At the time this Agreement is executed and at the Closing Date, you shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”)comfort letter from PricewaterhouseCoopers LLP, substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of independent public accountants for the Company’s Board , dated as of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on as of the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, Date addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares capital stock or long-term debt of the Company or any of the Subsidiaries or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholdersstockholders’ equity, properties properties, affairs or prospects of the CompanyCompany and the Subsidiaries, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism explosion or other calamitycalamity at any of the properties owned or leased by the Company or any of its Subsidiaries, the effect of which, in any such case described above, is, in the reasonable sole judgment of the UnderwritersBear Xxxxxxx, so material and adverse as to make it impracticable or inadvisable to proceed with the sale Offering on the terms and in the manner contemplated in the Prospectus (exclusive of Securities or Offering as contemplated herebyany supplement).
(i) The Underwriters You shall have received a lock-up agreement from each Lock-Up Partyperson who is a director or officer of the Company (other than former employees), duly executed by the applicable Lock-Up Partyor Selling Stockholder, in each case substantially in the form attached hereto as Annex IVIII.
(j) The Shares are registered under the Exchange Act and, as of At the Closing Date, the Shares shall be listed and admitted and authorized have been approved for trading listing on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligibleNYSE.
(k) FINRA At the Closing Date, the NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) Each Selling Stockholder has completed the transactions contemplated by this Agreement and the Custody Agreements, including, without limitation, delivering the Shares to the Custodian.
(m) 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 Closing Date, prevent the issuance or sale of the SecuritiesShares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the CompanyShares.
(mn) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or other documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect . If any of the CSRC Filings on its websiteconditions specified in this Section 6 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 you or to Underwriters’ Counsel pursuant to this Section 6 shall not be reasonably satisfactory in form and substance to Bear Xxxxxxx and to Underwriters’ Counsel, all obligations of the Underwriters hereunder may be cancelled by Bear Xxxxxxx at, or at any time prior to, the Closing Date and the obligations of the Underwriters to purchase the Additional Shares may be cancelled by Bear Xxxxxxx at, or at any time prior to, the Additional Closing Date. Notice of such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect cancellation shall be given to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review MeasuresCompany in writing, or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
Appears in 2 contracts
Samples: Underwriting Agreement (Synnex Corp), Underwriting Agreement (Synnex Corp)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Firm Securities and the Additional Securities as provided herein shall be subject to: (i) the accuracy of the representations and warranties of the Company herein contained, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters Representative or to Underwriters’ ' Counsel pursuant to this Section 7 6 of any misstatement or omission, omission (iii) the performance by the Company of its obligations hereunder, and (iv) each of the following additional conditions. For purposes of this Section 6, the terms "Closing Date" and "Closing" shall refer to the Closing Date for the Firm Securities and any Additional Closing Date, if different, for the Additional Securities, and each of the foregoing and following conditions must be satisfied as of each Closing.
(a) The Registration Statement shall have become effective and all necessary regulatory and or listing approvals shall have been received not later than 5:30 P.M., Eastern TimeNew York time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the UnderwritersRepresentative. If the Company shall have elected to rely upon Rule 430A under the Securities Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof hereof and a form of the Prospectus containing information relating to the description of the Securities Shares and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and or the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any post-effective amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus thereof shall have been issued; issued and no proceedings for the issuance of such an order therefor shall have been initiated or threatened; all requests of threatened by the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfactionCommission.
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters Representative shall have received, in form satisfactory to received the Underwriters and Underwriters’ counsel favorable written opinion of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK Xxxxxxx Coie LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated in form attached hereto as Annex I.
(c) All proceedings taken in connection with the Closing Date or any Additional Closing Date, as sale of the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, Firm Securities and the Company Additional Securities as herein contemplated shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, be satisfactory in form and substance satisfactory to the RepresentativeRepresentative and to Underwriters' Counsel.
(d) The Underwriters Representative shall have received certificates a certificate of each of the Chairman, Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”)Company, substantially in the form attached hereto as Annex I and dated as of the Closing Date, Date to the effect that: (i) the conditions condition set forth in subsection (a) of this Section 7 have 6 has been satisfied, (ii) as of the date hereof and as of the applicable Closing Date, the representations and warranties of the Company set forth in Section 2 1 hereof are accurate, (iii) as of the applicable Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has and the Subsidiaries have not sustained any material loss or interference with its their respective businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included or incorporated by reference in the Registration Statement and the Prospectus pursuant to the Rules and Regulations which are not so included, included or incorporated by reference and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, Prospectus there has not been any Material Adverse Change material adverse change or any development involving a prospective Material Adverse Changematerial adverse change, whether or not arising from transactions in the ordinary course of business, in or affecting (x) the business, condition (financial or otherwise), results of operations, shareholders' equity, properties or prospects of the Company and the Subsidiaries, taken as a whole; (y) the long-term debt or capital stock of the Company or any of its Subsidiaries; or (z) the Offering or consummation of any of the other transactions contemplated by this Agreement, the Registration Statement and the Prospectus.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and Agreement, on the Closing Date and, as the case may be, on each Additional Closing Date, the Underwriters Representative shall have received a “"cold comfort” " letter from Xxxxxx Asia CPAs LLP (Xxxxxxxx Xxxxx Xxxxxxx & Xxxxxxx PC, independent public accountants for the “Auditor Comfort Letter”) Company, dated, respectively, as of each such date, the date of the date of delivery and addressed to the Underwriters and in form and substance satisfactory to the Underwriters Representative and Underwriters’ ' Counsel, confirming that they are independent certified public accountants with respect to the Company and its Subsidiaries within the meaning of the Securities Act and all applicable the Rules and Regulations, and stating, as of such the date of delivery (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to the date of such dateletter), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter and, with respect to letters issued as of Additional Closing Dates, confirming the conclusions and findings set forth in such prior letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(hf) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares capital stock or long-term debt of the Company or any Subsidiary or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ ' equity, properties or prospects of the CompanyCompany and the Subsidiaries, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable sole judgment of the UnderwritersRepresentative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale Offering on the terms and in the manner contemplated in the Prospectus (exclusive of Securities or Offering as contemplated herebyany supplement).
(ig) The Underwriters Representative shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached hereto as Annex IVII.
(h) The Representative shall have received a duly executed management confirmation letter from the Company's directors and officers relating to certain information appearing in the Registration Statement, which letter shall be in the form previously delivered to the Representative in connection with the filing of the Preliminary Prospectus.
(i) The Securities shall have been approved for quotation on AMEX.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(lk) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the CompanySecurities.
(ml) The Company shall have furnished the Underwriters and Underwriters’ ' Counsel with such other certificates, opinions or other documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect . If any of the CSRC Filings on its websiteconditions specified in this Section 6 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 Underwriters' Counsel pursuant to this Section 6 shall not be reasonably satisfactory in form and substance to the Representative and to Underwriters' Counsel, all obligations of the Underwriters hereunder may be cancelled by the Representative at, or at any time prior to, the consummation of the Closing, and the obligations of the Underwriters to purchase the Additional Securities may be cancelled by the Representative at, or at any time prior to, the Additional Closing Date. Notice of such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect cancellation shall be given to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review MeasuresCompany in writing, or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
Appears in 2 contracts
Samples: Underwriting Agreement (HyperSpace Communications, Inc.), Underwriting Agreement (HyperSpace Communications, Inc.)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder are subject to purchase and pay for the Securities as provided herein shall be subject to: (i) the accuracy of the representations and warranties of the Company and Xxxxxx Industries herein contained, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company and Xxxxxx Industries of its their obligations hereunder, and (iv) each of to the following additional further conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, P.M. on the date of this Agreementhereof, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof you may approve; and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to on the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no issued under the 1933 Act or proceedings for the issuance of such an order shall have been therefor initiated or threatened; all requests of threatened by the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfactionCommission.
(b) The Underwriters shall not have reasonably determined, discovered and advised disclosed to the Company, Company on or prior to the Closing Date that the Registration Statement, Statement as amended at the General Disclosure Package Effective Time or thereafter or the Prospectus, Prospectus or any amendment thereof or supplement thereto, thereto contained or any Issuer Free Writing Prospectus, contains an untrue statement of a fact which, in the Underwriters’ reasonable opinion, is material, or omitted or omits to state a fact which, in the opinion of Xxxxx & Wood LLP, counsel for the Underwriters’ reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory All corporate proceedings and other legal matters relating to the Underwriters authorization, form and Underwriters’ counsel validity of (i) this Agreement, the Indenture, the Trust Agreement, the Purchase Agreement, the Servicing Agreement, the Registration Statement and the Prospectus, and all other legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel matters relating to this Agreement and the Company dated as of the Closing Date and addressed transactions contemplated hereby shall be satisfactory in all respects to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such all documents and information as such counsel that they may reasonably request to enable them to pass on upon such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The On the Closing Date, the Underwriters shall have received certificates received:
(1) The opinion, dated the Closing Date, of Xxxxxxxxxx, Xxxxxxxxxx & Xxxx, counsel for the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”)Issuer, substantially in the form attached hereto as Annex I Exhibit A.
(2) The opinion, dated the Closing Date, of Xxxxxxx Xxxxxx, counsel for the Company, substantially in the form attached hereto as Exhibit B.
(3) The favorable opinion, dated the Closing Date, of Xxxxxx X. Xxxxxx, General Counsel to Xxxxxx Industries, in form and substance satisfactory to you and counsel for the Underwriters, to the effect that:
(i) Xxxxxx Industries has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware with corporate power and authority to own, lease and operate its properties and conduct its business as described in the Prospectus.
(ii) Xxxxxx Industries is not, and will not be, as a result of its entering into this Agreement and consummating the transactions contemplated hereby, in violation of its Restated Certificate of Incorporation or bylaws.
(iii) Except as disclosed in the Registration Statement, there is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending, or, to the best of such counsel's knowledge, against Xxxxxx Industries which could reasonably be expected to interfere with or adversely affect the consummation of the transactions contemplated herein.
(iv) This Agreement has been duly authorized, executed and delivered by Xxxxxx Industries.
(v) No filing or registration with, notice to or consent, approval, authorization or order or other action of, any court or governmental authority or agency, is required for the consummation by Xxxxxx Industries of the transactions contemplated by this Agreement, except such as have been obtained and except such as may be required under state securities or Blue Sky laws.
(4) The favorable opinion, dated as of the Closing Date of Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., counsel for the Owner Trustee, substantially in the form attached hereto as Exhibit C.
(5) The favorable opinions of local counsel to the Company in those jurisdictions determined by the Underwriters, dated the Closing Date, in form and substance acceptable to the Underwriters and its counsel.
(6) The favorable opinion, dated the Closing Date, of Xxxxxx, Xxxxx, Xxxxxxxx and Xxxxxxxx, counsel for the Trustee, in form and substance satisfactory to counsel for the Underwriters, to the effect that: :
(i) The Trustee, at the conditions set forth in subsection (a) time of this Section 7 have been satisfiedits execution and delivery of the Indenture, had full power and authority to execute and deliver the Indenture and has full power and authority to perform its obligations thereunder.
(ii) as The Indenture has been duly and validly authorized, executed and delivered by the Trustee and, assuming due authorization, execution and delivery thereof by the Issuer, constitutes the valid and binding agreement of the date hereof and Trustee enforceable against the Trustee in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other laws relating to or affecting creditors' rights or by general principles of equity.
(iii) No consent, approval or authorization of, or registration, declaration or filing with, any court or governmental agency or body of the United States of America or any state thereof was or is required for the execution, delivery or performance by the Trustee of the Indenture.
(7) The favorable opinion, dated the Closing Date, of Brown & Wood LLP, counsel for the representations Underwriters, with respect to the issue and warranties sale of the Company set forth in Section 2 hereof are accurateNotes, the Registration Statement, this Agreement, the Prospectus and such other related matters as the Underwriters may require.
(iiie) as of On the Closing Date, all agreementsthere shall not have been, conditions and obligations of since the Company to be performed date hereof or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions material adverse change in the ordinary course of business.
(e) At each condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Closing DateCompany or Xxxxxx Industries, and the Underwriters shall have received a certificate of the Company signed by the Secretary Chairman of the Company (Board, the “Secretary’s Certificate”)President or any Vice President of Xxxxxx Industries, substantially in on behalf of each of Xxxxxx Industries and the form attached hereto Company, dated as Annex II and dated of the Closing Date, certifying: to the effect that (i) that there has been no such material adverse change, (ii) the representations and warranties in Section 1 are true and correct with the same force and effect as though expressly made at and as of the Closing Date, (iii) each of the Charter Company and Bylaws is true Xxxxxx Industries has complied with all agreements and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating satisfied all conditions on its part to be performed or satisfied at or prior to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; Closing Date and (iv) as to no stop order suspending the incumbency effectiveness of the officers of Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Company. The documents referred to in such certificate shall be attached to such certificateCommission.
(f) On the date of this Agreement and on At the Closing Date, the Underwriters Price Waterhouse LLP shall have received furnished to you a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect (I) to the financial information and other matters effect that (i) they have made a statistical sample of the Accounts, compared certain attributes from the files relating to such Accounts to a magnetic tape prepared by the Registration Statement covered Issuer, (ii) as a result of such comparison they are [95]% confident that the information in Account files for the attributes so tested will not vary from the corresponding information on such magnetic tape by more than [3]% and (iii) based on certain assumptions supplied to them by the Issuer, the amounts in the Collection Account on each Payment Date will be sufficient to make the payment of interest and principal on the Notes issued by the Issuer due on such letterPayment Date and to pay the final installment of principal of such Notes on or before the Maturity Date for such Notes and (II) to the effect of the letter furnished by them to the Trustee pursuant to Section 2.12(g) of the Indenture in connection with the issuance of the Notes. (Such letter may consist of a copy of the letter furnished to the Trustee accompanied by a letter addressed to you indicating that you may rely on such letter as if it were addressed to you directly.)
(g) On the date of this Agreement and on the Closing Date, the Company Price Waterhouse LLP shall have furnished to the Representative, you a certificate on behalf of the Companyletter or letters, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of addressed to you, to such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration as you reasonably may request in respect of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligibleProspectus.
(kh) FINRA On the Closing Date, you shall have confirmed that it has not raised any objection with respect to received from the fairness and reasonableness Trustee a certificate signed by one or more duly authorized officers of the underwriting terms and arrangements.
(l) No action shall have been taken and no statuteTrustee, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, dated as of the Closing Date, prevent as to the issuance or sale due acceptance of the Securities; Indenture by the Trustee and no injunction or order the due execution and delivery of any federal, state or foreign court the Notes delivered by the Trustee thereunder and such other matters as you shall have been issued that would, as of request.
(i) By the Closing Date, prevent the issuance or sale of Class A-1 Notes shall be rated "AAA" by Standard and Poor's and "Aaa" by Xxxxx'x, the Securities or materially Class A-2 Notes shall be rated at least "AA" by Standard and adversely affect or potentially materially Poor's and adversely affect "Aa2" by Xxxxx'x, the business or operations of Class A-3 Notes shall be rated at least "A" by Standard and Poor's and "A2" by Xxxxx'x and the CompanyClass A-4 Notes shall be rated at least "BBB" by Standard and Poor's and "Baa2" by Xxxxx'x.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 2 contracts
Samples: Underwriting Agreement (Mid State Trust Vi), Underwriting Agreement (Mid State Trust Vi)
Conditions of Underwriters’ Obligations. The obligations of the --------------------------------------- Underwriters to purchase and pay for the Securities Firm Shares and the Additional Shares, as provided herein herein, shall be subject to: (i) to the accuracy of the representations and warranties of the Company herein contained, as of the date hereof and as of the Closing Date or (for purposes of this Section 6, "Closing Date" shall refer to the ------------ Closing Date for the Firm Shares and any Additional Closing Date, (ii) if different, for the Additional Shares), to the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Xxxxxx & Xxxxxxx ("Underwriters’ Counsel ' Counsel") pursuant to this Section 7 6 of any material --------------------- misstatement or omission, (iii) to the performance by the Company of its obligations hereunder, and (iv) each of to the following additional conditions.:
(a) The Prior to the Closing Date the Registration Statement shall have become effective effective, and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the ClosingDate, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or any part thereofproceedings therefor initiated or, or any amendment thereofto the Company's knowledge, nor suspending or preventing threatened by the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Commission. The Prospectus shall have been issued; no proceedings filed or transmitted for filing with the issuance Commission pursuant to Rule 424(b) of the Securities Act Regulations within the prescribed time period, and prior to Closing Date the Company shall have provided evidence satisfactory to the Underwriters of such an order shall have been initiated timely filing or threatened; all requests of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfactiontransmittal.
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement All of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth contained in Section 2 this Agreement shall be true and correct on the date hereof are accurate, (iii) and on the Closing Date with the same force and effect as if made on and as of the date hereof and the Closing Date, respectively. The Company shall have performed or complied with all agreements, conditions and obligations of the Company agreements herein contained and required to be performed or complied with hereunder on by it at or prior thereto to the Closing Date.
(c) The Prospectus shall have been duly performed printed and copies distributed to the Underwriters not later than 10:00 a.m., New York City time, on the second business day following the date of this Agreement or complied withat such later date and time as to which the Underwriters may agree, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) and no stop order suspending the effectiveness qualification or exemption from qualification of the Registration Statement or Shares in any amendment thereof has jurisdiction referred to in Section 4(d) shall have been issued and no proceedings therefor proceeding for that purpose shall have been initiated commenced or threatened by the Commission, (vi) there are no pro forma shall be pending or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of businessthreatened.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ld) 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 agency which would, as of the Closing Date, prevent the issuance or sale of the SecuritiesShares; and no injunction action, suit or order of any federal, state or foreign court proceeding shall have been issued commenced and be pending against or affecting or, to the best knowledge of the Company, threatened against, the Company or any of its subsidiaries before any court or arbitrator or any governmental body, agency or official that would(i) could reasonably be expected to result in a Material Adverse Effect or (ii) has not been disclosed in the Prospectus.
(e) Since the dates as of which information is given in the Prospectus and except as contemplated by the Prospectus, (i) there shall not have been any material adverse change, or any development that is reasonably likely to result in a material adverse change, in the capital stock or the long-term debt, or material increase in the short-term debt, of the Company or any of its subsidiaries from that set forth in the Prospectus, (ii) no dividend or distribution of any kind shall have been declared, paid or made by the Company or any of its subsidiaries on any class of its capital stock, (iii) neither the Company nor any of its subsidiaries shall have incurred any liabilities or obligations, direct or contingent, that are material, individually or in the aggregate, to the Company and its subsidiaries, taken as a whole, and that are required to be disclosed on a balance sheet or notes thereto in accordance with generally accepted accounting principles and are not disclosed on the latest balance sheet or notes thereto included in the Prospectus. Since the date hereof and since the dates as of which information is given in the Prospectus, there shall not have occurred any Material Adverse Effect.
(f) The Underwriters shall have received a certificate, dated the Closing Date, signed on behalf of the Company by each of the Company's Chief Executive Officer and Chief Financial Officer in form and substance reasonably satisfactory to the Underwriters, confirming, as of the Closing Date, prevent the issuance or sale matters set forth in paragraphs (a) through (e) of this Section 6 and that, as of the Securities or materially and adversely affect or potentially materially and adversely affect Closing Date, the business or operations obligations of the Company to be performed hereunder on or prior thereto have been duly performed in all material respects.
(g) The Underwriters shall have received on the Closing Date an opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel to the Underwriters, of Kronish, Lieb, Weiner & Xxxxxxx LLP, counsel for the Company, to the effect set forth in Exhibit A --------- hereto.
(h) The Underwriters shall have received an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, of Xxxxxx & Xxxxxxx, counsel to the Underwriters, covering such matters as are customarily covered in such opinions.
(i) Xxxxxx & Xxxxxxx shall have been furnished with such documents, in addition to those set forth above, as they may reasonably require for the purpose of enabling them to review or pass upon the matters referred to in this Section 6 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions herein contained.
(j) At the time this Agreement is executed and at the Closing Date the Underwriters shall have received from Ernst & Young LLP, independent public accountants for the Company and its subsidiaries, dated as of the date of this Agreement and as of the Closing Date, customary comfort letters addressed to the Underwriters and in form and substance satisfactory to the Underwriters and counsel to the Underwriters with respect to the financial statements and certain financial information of the Company and its subsidiaries contained in the Prospectus.
(l) At the Closing Date, the Shares shall have been approved for quotation on the Nasdaq.
(m) The Company At the time this Agreement is executed and at the Closing Time, the NASD shall not have furnished withdrawn, or given notice of an intention to withdraw, its approval of the Underwriters fairness of the underwriting terms and arrangements of the offering of the Shares by the Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC Each of the General Administrative and Services Agreement, Master Network Services Agreement, Public Internet Access Services Agreement, and Customer Network and Application Services Agreement shall be in full force and effect, and no party to any such agreement shall have concluded the CSRC Filings and published the filing results on January 2given any notice of termination or amendment of any material provision thereof, 2024 in respect or of the CSRC Filings on its websiteany intention to terminate or amend any material provision thereof, to any other party, and no event shall have occurred which would prevent either party from substantially performing its obligations under such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidatedagreements.
(o) All opinions, certificates, letters and other documents required by this Section 6 to be delivered by the Company will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Underwriters. The Company is not required to apply for cybersecurity review will furnish the Underwriters with the CAC with respect such conformed copies of such opinions, certificates, letters and other documents as Bear Xxxxxxx shall reasonably request. Prior to the Company’s proposed overseas listing Closing Date, the Company shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request. If any of the conditions specified in this Section 6 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 Underwriters or to Underwriters' Counsel pursuant to this Section 6 shall not be in all material respects reasonably satisfactory in form and substance to the Revised Cybersecurity Review MeasuresUnderwriters and to Underwriters' Counsel, all obligations of the Underwriters hereunder may be canceled by the Underwriters at, or at any time prior to, the Closing Date and the obligations of the Underwriters to purchase the Additional Shares may be canceled by the Underwriters at, or at any time prior to, the Additional Closing Date. Notice of such cancellation shall be given to the Company in writing, or by telephone, telecopy, telex or telegraph, confirmed in writing.
Appears in 2 contracts
Samples: Underwriting Agreement (Digex Inc/De), Underwriting Agreement (Digex Inc/De)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to purchase the accuracy, when made and pay for the Securities as provided herein shall be subject to: (i) the accuracy on each Delivery Date, of the representations and warranties of the Company herein containedand the Operating Partnership contained herein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and (iv) to each of the following additional terms and conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been timely filed with the Commission in a timely fashion in accordance with Section 5(a)(i); the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters Company shall have been filed complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the Commission pursuant to Rule 424(b) within the applicable time perioddate hereof; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings proceeding or examination for the issuance of such an order purpose shall have been initiated or threatenedthreatened by the Commission; all requests and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with.
(b) All corporate proceedings and other legal matters incident to be included in the authorization, form and validity of this Agreement, the Shares, the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters’ reasonable opinion, is material, or omits and the Company shall have furnished to state a fact which, in the Underwriters’ reasonable opinion, is material such counsel all documents and is required information that they may reasonably request to be stated therein or necessary enable them to make the statements therein not misleadingpass upon such matters.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Hunton & Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, LLP shall have furnished to the Representative its (i) written opinionopinion and letter, as counsel to the Company, addressed to the Underwriters and dated the Closing Date or any Additional Closing such Delivery Date, substantially in the forms attached hereto as Exhibits B-1 and B-2.
(d) Hunton & Xxxxxxxx LLP shall have furnished to the case may beRepresentative its written tax opinion, and (ii) negative assurance letteras tax counsel to the Company, addressed to the Underwriters and dated the Closing Date or any Additional Closing such Delivery Date, substantially in the form attached hereto as Exhibit B-3.
(e) Xxxxxxx LLP shall have furnished to the Representative its written opinion, as Maryland counsel to the Company, addressed to the Underwriters and dated such Delivery Date, substantially in the form attached hereto as Exhibit B-4.
(f) The Representative shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated such Delivery Date, in form and substance satisfactory to the Representative, with respect to the issuance and sale of the Shares, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the case Representative may bereasonably require, and the Company shall have furnished to such counsel such documents and information as such counsel may they reasonably request to enable for the purpose of enabling them to pass on upon such matters. XxxXxxxxx Law Offices.
(g) At the time of execution of this Agreement, PRC counsel to the Underwriters, Representative shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may bereceived from PricewaterhouseCoopers LLP a letter, in form and substance satisfactory to the Representative.
(d) The , addressed to the Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: date hereof (i) confirming that they are independent public accountants within the conditions set forth meaning of the Securities Act and are in subsection (a) compliance with the applicable requirements relating to the qualification of this Section 7 have been satisfiedaccountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof and as of the Closing Date(or, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company with respect to be performed matters involving changes or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to developments since the respective dates as of which specified financial information is given in the Registration Statement and the most recent Preliminary Prospectus, there has as of a date not been any Material Adverse Change or any development involving a prospective Material Adverse Changemore than three days prior to the date hereof), whether or not arising from transactions the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in the ordinary course of businessconnection with registered public offerings.
(eh) At each With respect to the letter of PricewaterhouseCoopers LLP referred to in the Closing Date, preceding paragraph and delivered to the Underwriters shall have received a certificate Representative concurrently with the execution of the Company signed by the Secretary of the Company this Agreement (the “Secretary’s Certificateinitial letter”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating Company shall have furnished to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received Representative a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letterbring-down letter”) as of each such dateaccountants, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, dated such Delivery Date (i) confirming that they are independent certified public accountants with respect to the Company within the meaning of the Securities Act and all are in compliance with the applicable Regulationsrequirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of such 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 five (5) three days prior to such datethe date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(gi) On The Representative shall have received from the Company, on behalf of itself and the Operating Partnership (in the Company’s capacity as general partner of the Operating Partnership), a certificate, dated such Delivery Date, of the Chief Executive Officer and Chief Financial Officer of the Company stating that:
(i) The representations, warranties and agreements of the Company and the Operating Partnership in Section 1 are true and correct on and as of such Delivery Date, and the Company and the Operating Partnership have complied with all the agreements contained herein and satisfied all the conditions on their part to be performed or satisfied hereunder at or prior to such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such officers, threatened; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth;
(i) neither the Company nor any of its subsidiaries shall have sustained, since the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain latest audited financial date contained statements included in the Registration Statement and Prospectus most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (the “CFO Certificate”), providing “management comfort” with respect to ii) since such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), date there shall not have been any change in the Ordinary Shares capital stock or long-term debt of the Company or any of its subsidiaries or any change in or development involving a change, whether or not arising from transactions in affecting the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equityproperties, properties management, business or prospects of the Company, Company and its subsidiaries taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described abovein clause (i) or (ii), is, in the reasonable judgment of the UnderwritersRepresentative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities public offering or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration delivery of the Shares under the Exchange Act or delisting or suspending the Shares from trading being delivered on such Delivery Date on the Nasdaq Global Market, nor will terms and in the Company have received any information suggesting that manner contemplated in the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligibleProspectus.
(k) FINRA Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have confirmed that it has not raised been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any objection with respect such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or state authorities, (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such), as to make it, in case of each of clauses (i) through (iv), in the fairness and reasonableness judgment of the underwriting Representative, impracticable or inadvisable to proceed with the public offering or delivery of the Shares being delivered on such Delivery Date on the terms and arrangementsin the manner contemplated in the Prospectus.
(l) No action The New York Stock Exchange shall have been taken approved the Shares for listing, subject only to official notice of issuance 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 evidence of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Companysatisfactory distribution.
(m) The Company Lock-Up Agreements, substantially in the form of Exhibit A hereto, between the Representative and the persons set forth on Schedule 2, shall have furnished been delivered to the Underwriters Representative on or before the date of this Agreement, shall be in full force and Underwriters’ Counsel with effect on such other certificatesDelivery Date. All opinions, opinions letters, evidence and certificates mentioned above or documents as they may have reasonably requested.
(n) The CSRC elsewhere in this Agreement shall have concluded the CSRC Filings and published the filing results on January 2, 2024 be deemed to be in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review compliance with the CAC with respect provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review MeasuresUnderwriters.
Appears in 2 contracts
Samples: Underwriting Agreement (Chatham Lodging Trust), Underwriting Agreement (Chatham Lodging Trust)
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters to purchase and pay for the Securities Shares, as provided herein herein, shall be subject to: (i) to the accuracy accuracy, as of the date hereof and the Closing Date and any later Option Closing Date, as the case may be, of the representations and warranties of the Company herein containedherein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, hereunder and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M.10:00 a.m., Eastern TimeNew York time, on the date following the date of this Agreement, or at such later time and or date as shall have been be consented to in writing by the Underwritersyou. If the Company shall have elected filing of the Prospectus, or any supplement thereto, is required pursuant to rely upon Rule 424(b) and Rule 430A under of the ActRules and Regulations, the Prospectus shall have been filed with in the Commission in a timely fashion in accordance with manner and within the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to time period required by Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time Rule 430A of the Closing, no Rules and Regulations. No stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings proceeding for the issuance of such an order that purpose shall have been initiated or, to the knowledge of the Company or threatened; all requests any Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, Statement or the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of Underwriters’ satisfaction' Counsel.
(b) The Underwriters shall not have reasonably determinedAll corporate proceedings and other legal matters in connection with this Agreement, the form of Registration Statement and the Prospectus, and advised the registration, authorization, issue, sale and delivery of the Shares shall have been reasonably satisfactory to Underwriters' Counsel, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this subsection.
(c) You shall have received, at no cost to you, on the Closing Date and on any later Option Closing Date, as the case may be, the opinions of (i) Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, corporate counsel to the Company in substantially the forms attached hereto on Appendix A, (ii) Xxxxxxx Xxxxxxxxxxx, Manager, Legal Affairs of the Company, (iii) Xxxxx Xxxxxx Xxxxxxxx LLP, local Washington corporate counsel to the Company and (iv) Xxxxx & Lardner, patent counsel to the Company in substantially the forms attached hereto on Appendix A, dated the Closing Date or such later Option Closing Date, addressed to the Underwriters and with reproduced copies of signed counterparts thereof for each of the Representatives.
(d) You shall have received from Venture Law Group, A Professional Corporation, Underwriters' Counsel, an opinion or opinions, dated the Closing Date or on any later Option Closing Date, as the case may be, in form and substance reasonably satisfactory to you, with respect to the sufficiency of all corporate proceedings undertaken by the Company and other legal matters relating to this Agreement and the transactions contemplated hereby as you may reasonably require, and the Company shall have furnished to such counsel such documents as it may have reasonably requested for the purpose of enabling it to pass upon such matters.
(e) You shall have received on the Closing Date and on any later Option Closing Date, as the case may be, a letter from the Accountants addressed to the Company and the Underwriters, dated the Closing Date or such later Option Closing Date, as the case may be, confirming that it is an independent certified public accountant with respect to the Company within the meaning of the Act and the Rules and Regulations thereunder and based upon the procedures described in its letter delivered to you concurrently with the execution of this Agreement (herein called the "Original Letter"), but carried out to a date not more than three days prior to the Closing Date or any such later Option Closing Date, as the case may be, (i) confirming that the Registration Statementstatements and conclusions set forth in the Original Letter are accurate as of the Closing Date or such later Option Closing Date, as the General Disclosure Package case may be; and (ii) setting forth any revisions and additions to the statements and conclusions set forth in the Original Letter that are necessary to reflect any changes in the facts described in the Original Letter since the date of such letter, or to reflect the Prospectusavailability of more recent financial statements, data or information. The letter shall not disclose any change, or any development involving a prospective change, in or affecting the business or properties of the Company which, in your reasonable judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Prospectus.
(f) You shall have received on the Closing Date and on any later Option Closing Date, as the case may be, a certificate of the President, the Executive Vice President, Finance and Administration and the Executive Vice President, Research Program Chairman of the Company, dated the Closing Date or such later date, to the effect that as of such date (and you shall be satisfied that as of such date):
(i) The representations and warranties of the Company in this Agreement are true and correct, as if made on and as of the Closing Date or any later Option Closing Date, as the case may be; and the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied at or prior to the Closing Date or any later Option Closing Date, as the case may be;
(ii) The Registration Statement has become effective under the Act and no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus has been issued, and no proceedings for that purpose have been instituted or are pending or, to the best of their knowledge, threatened under the Act;
(iii) they have carefully reviewed the Registration Statement and the Prospectus; and, when the Registration Statement became effective and at all times subsequent thereto up to the delivery of such certificate, the Registration Statement and the Prospectus and any amendments or supplements thereto contained all statements and information required to be included therein or necessary to make the statements therein not misleading; and when the Registration Statement became effective, and at all times subsequent thereto up to the delivery of such certificate, none of the Registration Statement or the Prospectus or any amendment thereof or supplement thereto, or thereto included any Issuer Free Writing Prospectus, contains an untrue statement of a material fact which, in the Underwriters’ reasonable opinion, is material, or omits omitted to state a any material fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received; and, in form satisfactory to since the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as effective date of the Closing Date and addressed Registration Statement, there has occurred no event required to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions be set forth in subsection (a) of this Section 7 have an amended or supplemented Prospectus that has not been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company so set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, forth; and
(iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been (A) any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions material adverse change in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents properties or assets described or referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and the Prospectus or in the condition (the “CFO Certificate”financial or otherwise), providing “management comfort” with respect to such informationoperations, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares business or long-term debt prospects of the Company or and its Subsidiary, (B) any change or development involving a changetransaction which is material to the Company and its Subsidiary, whether or not arising from except transactions entered into in the ordinary course of business, in (C) any obligation, direct or contingent, incurred by the businessCompany or its Subsidiary, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of which is material to the Company, Company and its Subsidiary taken as a whole, including but not limited (D) any change in the capital stock or outstanding indebtedness of the Company or its Subsidiary which is material to the occurrence Company and its Subsidiary taken as a whole, other than as contemplated by the Prospectus, or (E) any dividend or distribution of any firekind declared, flood, storm, explosion, accident, act of war paid or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading made on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations capital stock of the Company.
(mg) The Company shall have furnished to you such further certificates and documents as you shall reasonably request as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to the obligations of the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requestedhereunder.
(nh) The CSRC Firm Shares and the Option Shares, if any, shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such been approved for designation upon notice of acceptance and/or filing results published not having otherwise been rejectedissuance on the Nasdaq National Market. All such opinions, withdrawncertificates, revoked or invalidated.
(o) letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to Underwriters' Counsel. The Company is not required to apply for cybersecurity review will furnish you with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measuressuch number of conformed copies of such opinions, certificates, letters and documents as you shall reasonably request.
Appears in 2 contracts
Samples: Underwriting Agreement (Cell Therapeutics Inc), Underwriting Agreement (Cell Therapeutics Inc)
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters hereunder are subject to purchase and pay for the Securities as provided herein shall be subject to: (i) the accuracy of the representations and warranties of the Company herein containedaccuracy, as of the date hereof and as at each of the First Closing Date or and the Additional Second Closing Date (as if made at such Closing Date), (ii) of and compliance with all representations, warranties and agreements of the absence from any certificatesCompany contained herein, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its respective obligations hereunder, including the covenants contained herein to be performed on or prior to the First Closing Date, and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M.5:00 p.m., Eastern TimeCentral time, on the date of this Agreement, or at such later time and date as you, as Representatives of the several Underwriters, shall approve and all filings required by Rules 424, 430A and 433 of the Rules and Regulations shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon timely made (without reliance on Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to 424(b)(8) or Rule 424(b) within the applicable time period164(b)); and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, thereof or any amendment thereof, nor suspending or preventing the use of the General Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests and any request of the Commission for additional information (to be included in the Registration Statement, the General Time of Sale Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ your satisfaction.
(b) The Underwriters No Underwriter shall not have reasonably determined, and advised the Company, Company that the Registration Statement, the General Time of Sale Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, Prospectus contains an untrue statement of fact which, in the Underwriters’ your reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ your reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they are made, not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated Except as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially contemplated in the form attached hereto as Annex I Time of Sale Disclosure Package and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so includedProspectus, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement Time of Sale Disclosure Package, neither the Company nor any of its subsidiaries shall have incurred any material liabilities or obligations, direct or contingent, other than in the ordinary course of business, or entered into any material transactions other than in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the Prospectuscapital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants), there has not been or any material change in the short-term or long-term debt of the Company, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock of the Company, or any Material Adverse Change or any development involving a prospective Material Adverse Change, Change (whether or not arising from transactions in the ordinary course of business), that, in your judgment, makes it impractical or inadvisable to offer or deliver the Securities on the terms and in the manner contemplated in the Time of Sale Disclosure Package and in the Prospectus.
(d) On each Closing Date, there shall have been furnished to you, as Representatives of the several Underwriters, the opinions of Xxxxxxxxxx & Xxxxx, P.A., Xxxxx & Xxxxx, P.A. and Xxxxx, Hannaford & Battles, P.A. counsel for the Company, dated such Closing Date and addressed to you, substantially in the forms attached hereto as Exhibit B.
(e) At On each of the Closing Date, there shall have been furnished to you, as Representatives of the Underwriters several Underwriters, such opinion or opinions from Faegre & Xxxxxx LLP, counsel for the several Underwriters, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Securities, the Registration Statement, the Time of Sale Disclosure Package or the Prospectus and other related matters as you reasonably may request, and such counsel shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto such papers and information as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating they request to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as enable them to the incumbency of the officers of the Company. The documents referred to in pass upon such certificate shall be attached to such certificatematters.
(f) On each Closing Date you, as Representatives of the date of this Agreement and on the Closing Dateseveral Underwriters, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each McGladrey & Xxxxxx, LLP, dated such date, Closing Date and addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counselyou, confirming that they are it is an independent certified public accountants with respect to the Company accounting firm within the meaning of the Act and all is in compliance with the applicable Regulationsrequirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of such date letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the ProspectusTime of Sale Disclosure Package, as of a date not prior to the date hereof or more than five (5) days prior to the date of such dateletter), the conclusions and findings of such said firm with respect to the financial information and other matters relating to the Registration Statement covered by its letter delivered to you concurrently with the execution of this Agreement, and the effect of the letter so to be delivered on such Closing Date shall be to confirm the conclusions and findings set forth in such prior letter.
(g) On the date of this Agreement and on the each Closing Date, the Company there shall have been furnished to you, as Representatives of the RepresentativeUnderwriters, a certificate on behalf certificate, dated such Closing Date and addressed to you, signed by the chief executive officer and by the chief financial officer of the Company, dated the respective dates of delivery thereof and addressed to the Underwriterseffect that:
(i) The representations and warranties of the Company in this Agreement are true and correct, in all material respects, as if made at and as of such Closing Date, and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its Chief Financial Officer with respect part to certain financial date contained in be performed or satisfied under this Agreement at or prior to such Closing Date;
(ii) No stop order or other order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof or the qualification of the Securities for offering or sale, nor suspending or preventing the use of the Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, has been issued, and, to their knowledge, no proceeding for that purpose has been instituted or is contemplated by the Commission or any state or regulatory body; and
(iii) The signers of said certificate have carefully examined the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, and any amendments thereof or supplements thereto, and (A) each part of the Registration Statement and Prospectus (the “CFO Certificate”)Prospectus, providing “management comfort” with respect and any amendments thereof or supplements thereto contain, and contained when such part of the Registration Statement, or any amendment thereof, became effective, all statements and information required to be included therein, the Registration Statement, or any amendment thereof, does not contain and did not contain when such informationpart of the Registration Statement, or any amendment thereof, became effective, any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in form light of the circumstances under which they are made, not misleading, and substance reasonably satisfactory the Prospectus, as amended or supplemented, does not include and did not include as of its date or the time of first use within the meaning of the Rules and Regulations, any untrue statement of material fact or omit to state and did not omit to state as of its date or the time of first use within the meaning of the rules and Regulations a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (B) neither (1) the Time of Sale Disclosure Package nor (2) any individual Issuer Limited-Use Free Writing Prospectus, when considered together with the Time of Sale Disclosure Package, include, nor included as of the Time of Sale any untrue statement of a material fact or omits, or omitted as of the Time of Sale, 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, (C) since the Time of Sale there has occurred no event required to be set forth in an amended or supplemented prospectus which has not been so set forth, (D) subsequent to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the respective dates as of which information is given in the Registration Statement (exclusive Time of any amendment thereof) and the Prospectus (exclusive of any supplement thereto)Sale Disclosure Package, there shall not have been any change in the Ordinary Shares or long-term debt of neither the Company nor any of its subsidiaries has incurred any material liabilities or any change obligations, direct or development involving a changecontingent, whether or not arising from transactions other than in the ordinary course of business, or entered into any material transactions, not in the ordinary course of business, condition or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Time of Sale Disclosure Package and in the Prospectus, there has not been any change in the capital stock (financial other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or otherwisewarrants), results or any material change in the short-term or long-term debt, or any issuance of operationsoptions, shareholders’ equitywarrants, properties convertible securities or prospects other rights to purchase the capital stock, of the Company, taken or any of its subsidiaries, or any Material Adverse Change or any development involving a prospective Material Adverse Change (whether or not arising in the ordinary course of business), and (E) except as a wholestated in the Time of Sale Disclosure Package and in the Prospectus, including but there is not limited pending, or, to the occurrence knowledge of the Company, threatened or contemplated, any fireaction, floodsuit or proceeding to which the Company or any of its subsidiaries is a party before or by any court or governmental agency, stormauthority or body, explosionor any arbitrator, accident, act of war or terrorism or other calamity, the effect of which, which might result in any Material Adverse Change.
(h) The Company shall have furnished to you and counsel for the Underwriters such case described aboveadditional documents, is, in the reasonable judgment of the Underwriters, so material certificates and adverse evidence as to make it impracticable you or inadvisable to proceed with the sale of Securities or Offering as contemplated herebythey may have reasonably requested.
(i) The Underwriters Financial Industry Regulatory Authority, Inc. shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken raised no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(lj) No action The Nasdaq Capital Market 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of approved the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations for listing, subject only to official notice of the Companyissuance.
(mk) The Company Underwriters shall have furnished received the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requestedLock-Up Agreements referenced in Section 4.
(nl) The CSRC shall have concluded All such opinions, certificates, letters and other documents will be in compliance with the CSRC Filings provisions hereof only if they are satisfactory in form and published substance to you and counsel for the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) Underwriters. The Company is not required to apply for cybersecurity review will furnish you with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measuressuch conformed copies of such opinions, certificates, letters and other documents as you shall reasonably request.
Appears in 2 contracts
Samples: Purchase Agreement (Electromed, Inc.), Purchase Agreement (Electromed, Inc.)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder, as to purchase and pay for the Securities as provided herein Shares to be delivered at each Time of Delivery, shall be subject to: (i) subject, in their discretion, to the accuracy of the condition that all representations and warranties and other statements of the Company herein contained, as and of the date hereof Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by condition that the Company and the Selling Stockholders shall have performed all of its their respective obligations hereunderhereunder theretofore to be performed, and (iv) each of the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time periodperiod prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or Statement, any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure PackagePreliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings proceeding for the issuance of such an order that purpose shall have been initiated or threatenedthreatened by the Commission; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; and all requests for additional information on the part of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ Canaccord Axxxx Inc.’s reasonable satisfaction.;
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx O’Melveny & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law Mxxxx LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinionUnderwriters such opinion or opinions, addressed dated such Time of Delivery, with respect to this Agreement, the Registration Statement, the Pricing Disclosure Package, the Prospectus and other related matters as the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Officesrequest;
(c) Vxxxxxx, PRC Xxxxxxx & Mxxxxx, counsel to the UnderwritersCompany, shall have furnished to the Representative its Underwriters their written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may besuch Time of Delivery, in form and substance reasonably satisfactory to the Representative.Underwriters, with respect to the matters set forth in Annex I hereto;
(d) The Underwriters Sxxxxxx X. Xxxxxxx, Senior Vice President and General Counsel to the Company, shall have received certificates furnished to the Underwriters his written opinion, dated such Time of Delivery, in form and substance reasonably satisfactory to the Underwriters, with respect to the matters set forth in Annex II hereto;
(e) Vxxxxxx, Xxxxxxx & Mxxxxx, counsel to each of the Chief Executive Officer and Chief Financial Officer Selling Stockholders, as indicated in Schedule II hereto shall have furnished to the Underwriters their written opinion with respect to each of the Company Selling Stockholders for whom they are acting as counsel, dated such Time of Delivery, in form and substance reasonably satisfactory to the Underwriters, with respect to the matters set forth in Annex III hereto;
(f) On the “Officers’ Certificate”)date hereof and also at each Time of Delivery, substantially Ernst & Young LLP, shall have furnished to the Underwriters a letter or letters, dated the respective date of delivery thereof, in form and substance reasonably satisfactory to the form attached hereto as Annex I and dated as of the Closing DateUnderwriters, to the effect that: set forth in Annex IV hereto;
(i) Neither the conditions set forth in subsection (a) Company nor any of this Section 7 its subsidiaries shall have been satisfied, (ii) as sustained since the date of the date hereof and as of latest audited financial statements included or incorporated by reference in the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained Pricing Prospectus any material loss or interference with its businessesbusiness from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated decree, otherwise than as set forth or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included contemplated in the Registration Statement and the Prospectus pursuant to the Regulations which are not so includedPricing Prospectus, and (viiii) subsequent to since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares capital stock (other than issuances of Common Stock pursuant to Company stock option and stock purchase plans described in the Registration Statement and the Pricing Prospectus) or long-term debt of the Company or any material adverse change or development involving a change, whether or not arising from transactions in the ordinary course of general affairs, business, in the businessassets, condition (management, financial position, stockholders’ equity or otherwise), results of operations, shareholders’ equity, properties or prospects operations of the Company, Company and its subsidiaries taken as a whole, including but not limited to otherwise than as set forth or contemplated in the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamityPricing Prospectus, the effect of which, in any such case described abovein clause (i) or (ii), is, is in the reasonable sole judgment of the Underwriters, Canaccord Axxxx Inc. so material and adverse as to make it impracticable or inadvisable to proceed with the sale public offering or the delivery of Securities the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(h) On or Offering as after the date hereof there shall not have occurred any of the following: (i) additional material governmental restrictions, not in force and effect on the date hereof, shall have been imposed upon trading in securities generally or minimum or maximum prices shall have been generally established on the New York Stock Exchange, the Nasdaq National Market, the American Stock Exchange or in the over-the-counter market by the NASD, or trading in securities generally shall have been suspended on the New York Stock Exchange, the Nasdaq National Market, the American Stock Exchange or in the over the counter market by the NASD, or a general banking moratorium shall have been established by federal or New York authorities, (ii) a suspension or material limitation in trading in securities generally on the Nasdaq National Market, (iii) a suspension or material limitation in trading in the Company’s securities on the Nasdaq National Market, (iv) an outbreak of major hostilities or other national or international calamity or any substantial change in political, financial or economic conditions shall have occurred or shall have accelerated or escalated to such an extent, as, in the sole judgment of Canaccord Axxxx Inc., to affect materially and adversely the marketability of the Shares or (v) there shall be any action, suit or proceeding pending or threatened, or there shall have been any development or prospective development involving particularly the business or properties or securities of the Company or any of its subsidiaries or the transactions contemplated hereby.by this Agreement, which, in the sole judgment of Canaccord Axxxx Inc., has materially and adversely affected the Company’s business or earnings and makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(i) The Underwriters Shares to be sold at such Time of Delivery shall have received a lock-up agreement from each Lock-Up Partybeen accepted for quotation, duly executed by subject to notice of issuance, on the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.Nasdaq National Market System;
(j) The Shares are registered under Each director and executive officer of the Company, other than a Selling Stockholder, shall have executed and delivered to the Underwriters agreements in which such person undertakes that, during the Lock-Up Period, such person will not, without the prior written consent of Canaccord Axxxx Inc., (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act and, as and the rules and regulations of the Closing DateCommission promulgated thereunder, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, whether any such transaction is to be settled by delivery of Common Stock or any such securities, in cash or otherwise, or (iii) publicly announce an intention to effect any transaction specified in clause (i) or (ii) above; provided, however, that if (a) during the period that begins on the date that is 17 calendar days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Shares shall be listed and admitted and authorized for trading Company issues an earnings release or material news or a material event relating to the Company occurs, or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the Nasdaq Global Market and satisfactory evidence last day of the Lock-Up Period, then the restrictions imposed by this clause (v) shall continue to apply until the expiration of the date that is 18 calendar days after the date of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration issuance of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission earnings release or the Nasdaq Global Market is contemplating terminating such registration material news or listing. The Firm Shares shall be DTC eligible.the material event occurs;
(k) FINRA The Company and the Selling Stockholders shall have confirmed that it has not raised any objection with respect furnished or caused to be furnished to the fairness and reasonableness Underwriters at such Time of the underwriting terms and arrangements.
(l) 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 Delivery certificates of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations officers of the Company.
(m) The , in their capacities as such, and of the Selling Stockholders, respectively, satisfactory to Canaccord Axxxx Inc., as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders, of all of their obligations hereunder to be performed at or prior to such Time of Delivery, and as to such other matters as the Underwriters may reasonably request, and the Company shall have furnished or caused to be furnished certificates as to the Underwriters matters set forth in subsections (a) and Underwriters’ Counsel with (g) of this Section, and as to such other certificates, opinions or documents matters as they Canaccord Axxxx Inc. may have reasonably requestedrequest.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 2 contracts
Samples: Underwriting Agreement (Reliv International Inc), Underwriting Agreement (Reliv International Inc)
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters to purchase and pay for the Securities as provided herein shall be under this Agreement are subject to: to the satisfaction of each of the following conditions:
(ia) the accuracy of All the representations and warranties of the Company herein contained, contained in this Agreement shall be true and correct on the Closing Date with the same force and effect as of the date hereof if made on and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and (iv) each of the following additional conditions.
(ab) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof manner and a form of within the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to time period required by Rule 424(b) within under the applicable time period; andSecurities Act, and at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings for the issuance of such an order that purpose shall have been initiated commenced or threatened; all requests of the Commission for additional information (to shall be included in the Registration Statementpending before or, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Underwriters shall not have reasonably determined, and advised best knowledge of the Company, that contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleadingCommission.
(c) The Underwriters shall have receivedFinal Term Sheet, in form satisfactory and any other material required to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to be filed by the Company dated as of pursuant to Rule 433(d) under the Closing Date and addressed to the UnderwritersSecurities Act, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to filed with the Underwriters with consent from Commission within the applicable time periods prescribed for such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representativefilings under Rule 433.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto)Date, there shall not have been any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the Ordinary Shares rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(i) Since the date of the latest balance sheet included in the Registration Statement and the Prospectus, there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, affairs or business prospects, whether or not arising in the ordinary course of business, of the Company and its subsidiaries taken as a whole, except as set forth or contemplated in the Prospectus, (ii) since the date of the latest balance sheet included in the Registration Statement and the Prospectus there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the capital stock or in the long-term debt of the Company from that set forth or any change or development involving a change, whether or not arising from transactions contemplated in the ordinary course of businessRegistration Statement and Prospectus, in (iii) the businessCompany and its subsidiaries shall have no liability or obligation, condition (financial direct or otherwise)contingent, results of operations, shareholders’ equity, properties or prospects of which is material to the CompanyCompany and its subsidiaries, taken as a whole, including but not limited other than those reflected in the Registration Statement and the Prospectus and (iv) on the Closing Date you shall have received a certificate dated the Closing Date, signed by the Chief Financial Officer and the Treasurer of the Company, confirming the matters set forth in paragraphs (a), (b), (c), (d) and (e) (i) – (iii) of this Section 9.
(f) You shall have received on the Closing Date an opinion (reasonably satisfactory to you and counsel for the Underwriters), dated the Closing Date, of a Chief Counsel or General Counsel of the Company or such other person as the Representatives and the Company may agree. The opinion of such counsel shall be rendered to you at the request of the Company and shall so state therein.
(g) You shall have received on the Closing Date an opinion (reasonably satisfactory to you and counsel for the Underwriters), dated the Closing Date, of Xxxxxx, Xxxx & Xxxxxxxx LLP, special counsel to the occurrence Company.
(h) You shall have received on the Closing Date an opinion, dated the Closing Date, of any fireXxxxxxxx & Xxxxxxxx LLP, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of counsel for the Underwriters, so material and adverse covering such matters as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated herebyyou may request.
(i) The Underwriters You shall have received a lock-up agreement from each Lock-Up Party, duly executed by letters on and as of the applicable Lock-Up Partydate hereof and on and as of the Closing Date, in each case substantially form and substance satisfactory to you, from Ernst & Young LLP, independent public accountants, with respect to the financial statements and certain financial information contained in the form attached as Annex IVRegistration Statement, any preliminary prospectus and the Prospectus.
(j) The Shares are registered under Company shall not have failed at or prior to the Exchange Act and, as Closing Date to perform or comply with any of the agreements herein contained and required to be performed or complied with by the Company at or prior to the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 2 contracts
Samples: Underwriting Agreement (Capital One Financial Corp), Underwriting Agreement (Capital One Financial Corp)
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters to purchase and pay for the Securities Bonds, as provided herein herein, shall be subject to: (i) to the accuracy accuracy, as of the date hereof, as of the Applicable Time and as of the Closing Date, of the representations and warranties of the Company herein containedherein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and (iv) each of to the following additional conditions.:
(a) The Registration Statement Company shall have become effective filed any preliminary prospectus and all necessary regulatory the Prospectus with the Commission (including the information required by Rule 430B under the Act) in the manner and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on within the date of this Agreement, time period required by Rule 424(b) under the Act; or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected filed a post-effective amendment to rely upon the Registration Statement containing the information required by Rule 430A 430B, and such post-effective amendment shall have become effective.
(b) The Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no periods prescribed for such filings under Rule 433.
(c) No stop order suspending the effectiveness of the Registration Statement or any part thereofStatement, or any post-effective amendment thereofto the Registration Statement, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall be in effect and no proceedings for that purpose shall have been issuedinstituted or, to the knowledge of the Company or any Underwriter, threatened by the Commission; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests and any request of the Commission for additional information (to be included in the Registration Statement, Statement or the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ your satisfaction.
(bd) The Underwriters No Underwriter shall not have reasonably determined, and advised the Company, Company that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, which in the Underwriters’ reasonable opinion, your opinion is material, material or omits to state a fact which, which in the Underwriters’ reasonable opinion, your opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(ce) The Underwriters shall have received, Except as contemplated in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, Disclosure Package and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law OfficesProspectus, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing DateStatement, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) Disclosure Package and the Prospectus (exclusive of any supplement theretoamendments or supplements thereto subsequent to the date of this Agreement), there shall not have been any change in the Ordinary Shares capital stock or long-term debt of the Company or any change adverse change, or any development involving a prospective adverse change, in the condition, financial or otherwise, or in the business, net worth or results of operations of the Company from that set forth in the Disclosure Package and the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in your judgment makes it impractical or inadvisable to offer or deliver the Bonds on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(f) On the Closing Date, you shall have received the opinion of XxXxxx Law Firm, P.A., counsel for the Company, dated the Closing Date, in the form of Exhibit A attached hereto.
(g) On the Closing Date, you shall have received the opinion of Xxxxxx X. Xxxxxxx, Esquire, Senior Vice President and General Counsel of the Company, dated the Closing Date, in the form of Exhibit B attached hereto.
(h) On the Closing Date, you shall have received from Xxxxxxxx Xxxxxxx LLP, counsel for the several Underwriters, such opinion or opinions, dated the Closing Date, as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. In rendering their opinion, such counsel may rely upon the opinion of Xxxxxx X. Xxxxxxx, Esquire, referred to above, as to all matters governed by South Carolina law.
(i) On or prior to the date hereof, you shall have received a letter from Deloitte & Touche LLP, dated the date of the execution and delivery of this Agreement, and specifying procedures completed not more than three business days prior to the date of the execution and delivery of this Agreement, addressed to you and in form and substance satisfactory to you, (1) confirming that they are independent accountants with respect to the Company as required by the Act and (2) with respect to the accounting, financing, or statistical information (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) contained in the Registration Statement or incorporated by reference therein, and containing statements and information of the type ordinarily included in accountants’ SAS 72, as amended by SAS 86, “Comfort Letters” to underwriters, with respect to the financial statements and certain financial information contained in or incorporated by reference into the Disclosure Package and the Prospectus, including any pro forma financial information. At the Closing Date, you shall have received a letter from Deloitte & Touche LLP, dated the date of its delivery, which shall reaffirm and, if necessary, update, on the basis of a review in accordance with the procedures set forth in the letter from Deloitte & Touche LLP, during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three business days prior to the Closing Date.
(j) On the Closing Date, you shall have received from the Company a certificate, signed by its Chairman, President or a Vice President and by its Treasurer, principal financial officer or principal accounting officer, dated the Closing Date, to the effect that, to the best of their knowledge based on a reasonable investigation:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and as of the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied on or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, shall be in effect and no proceedings for that purpose shall have been instituted or threatened by the Commission;
(iii) the Registration Statement and the Prospectus, and any amendments or supplements thereto, contain all statements and information required to be included therein; the Registration Statement or any amendments thereto, at the time the Registration Statement or such amendments became effective and at the Execution Time, did not contain an 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 not misleading; the Prospectus, as of its date and at the Closing Date did not and does not contain an untrue statement of a material fact and did not and does not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Disclosure Package, as of the Applicable Time, did not contain any untrue statement of a material fact and did not omit 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 (provided, however, that in each case, no representation is made, as applicable, as to any statements in or omissions from the Statement of Eligibility on Form T-1 filed as an exhibit to the Registration Statement, the Book-Entry Information, or information contained in or omitted from the Registration Statement or Prospectus or any amendment or supplement thereto in reliance upon, and in conformity with, written information furnished to the Company by you, or by any Underwriter through you, specifically for use in the preparation thereof); and, since the date hereof there has occurred no event required to be set forth in an amended or supplemented prospectus which has not been so set forth and there has been no document required to be filed under the Exchange Act and which upon such filing would be deemed to be incorporated by reference in the Disclosure Package and the Prospectus, which has not been so filed; and
(iv) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto dated after the Execution Time), there has been no material adverse change, or any development which the Company has reasonable cause to believe will involve a prospective material adverse change, in the condition (financial or other), earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of Disclosure Package and the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligibleProspectus.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters to you such further certificates and Underwriters’ Counsel with such other certificates, opinions or documents as they may you shall have reasonably requested.
(nl) The CSRC There shall not have concluded occurred after the CSRC Filings and published date hereof any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that indicates a negative change or does not indicate the filing results on January 2, 2024 in respect direction of the CSRC Filings on its websitepossible change, and such notice in the rating accorded any of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant securities by any “nationally recognized statistical rating organization,” as such term is defined under Section 3(a)62 of the Exchange Act. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you. The Company will furnish you with such conformed copies of such opinions, certificates, letters and other documents as you shall reasonably request, and the opinions referred to in paragraphs (f) and (g) shall be deemed satisfactory provided they are substantially in the forms attached as exhibits to this Agreement. The documents required to be delivered by this Section 5 shall be delivered to the Revised Cybersecurity Review Measuresoffice of XxXxxx Law Firm, P.A., counsel for the Company, 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxx Xxxxxxxx 00000, on or prior to the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (South Carolina Electric & Gas Co), Underwriting Agreement (South Carolina Electric & Gas Co)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Securities Shares as provided herein shall be subject to: to the accuracy, as of the date hereof and the Closing Date and any later date on which Option Shares are to be purchased (i) the accuracy "Option Closing Date"), as the case may be, of the representations and warranties of the Company herein containedherein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, p.m. on the date hereof, or with the consent of this Agreementthe Underwriters, at a later time and date, not later, however, than 5:30 p.m. on the first business day following the date hereof, or at such later time and date as shall have been consented to may be approved by a majority in writing by interest of the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof ; and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no issued under the Securities Act or proceedings for the issuance of such an order shall have been therefor initiated or threatened; all requests threatened by the Commission and any request on the part of the Commission for additional information (to be included in the Registration Statement, Statement or the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of counsel to the Underwriters’ satisfaction. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time 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 of Rule 430A of the Rules and Regulations. Qualification under the securities laws of such states as you may deem necessary to the success of the underwriting of the issue and sale of the Shares upon the terms and conditions set forth in this Agreement or contemplated by this Agreement and containing no provisions unacceptable to you will have been secured, and no stop order (or the equivalent thereof) will be in effect denying or suspending effectiveness of such qualification, nor will any stop order proceedings (or the equivalent thereof) with respect thereto be instituted or pending or threatened under such laws.
(b) The At the Closing Date and the Option Closing Date, if any, counsel for the Underwriters shall not have reasonably determinedbeen furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Shares as contemplated herein and related proceedings or in order to evidence the accuracy of any of the representations and warranties, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectusfulfillment of any of the conditions, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement herein contained; and all proceedings taken by the Company in connection with the issuance and sale of fact which, the Shares as herein contemplated shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters There shall not have receivedbeen, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of since the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change change in the condition (financial or any development involving a prospective Material Adverse Changeotherwise), earnings, operations, business affairs or business prospects of the Company and its Subsidiaries considered as one enterprise, whether or not arising from transactions in the ordinary course of business.
(e) At each business which, in your sole judgment, is material and adverse and that makes it, in your sole judgment, impracticable or inadvisable to proceed with the public offering of the Closing DateShares as contemplated by the Prospectus, and the Underwriters shall have received a certificate of the Company signed by the Secretary President or Vice President of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes chief financial or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf chief accounting officer of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken effect that (i) there has been no action designed to terminatesuch material adverse change, or likely to have (ii) the representations and warranties in Section 2 hereof are true and correct with the same force and effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness as though expressly made at and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent (iii) the issuance Company has complied with all agreements and satisfied all conditions on its part to be performed or sale of the Securities; and no injunction satisfied at or order of any federal, state or foreign court shall have been issued that would, as of prior to the Closing Date, prevent and (iv) no stop order suspending the issuance or sale effectiveness of the Securities Registration Statement has been issued and no proceedings for that purpose have been initiated or materially and adversely affect threatened by the Commission or potentially materially and adversely affect the business or operations of the Companyany Blue Sky jurisdiction.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 2 contracts
Samples: Underwriting Agreement (Training Devices International Inc), Underwriting Agreement (Training Devices International Inc)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Securities Firm Shares and Additional Shares, if applicable, as provided herein shall be subject to: (i) the accuracy of the representations and warranties of the Company herein contained, as of the date hereof and as of the Closing Date or the Additional Option Closing Date, if applicable, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters Representative or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and (iv) each of the following additional conditions. For purposes of this Section 7, the term “Closing Date” shall refer to the Closing Date for the Firm Shares and the Option Closing Date for the Additional Share; the term “Closing” share refer to each of the foregoing and following conditions must be satisfied as of each Closing.
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., P.M. Eastern Timetime, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the UnderwritersRepresentative. If the Company shall have elected to rely upon Rule 430A under the Securities Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ Representative’s satisfaction; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Underwriters Representative shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ Representative’s reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ Representative’s reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters Representative shall have receivedreceived legal opinions, in form satisfactory to the Underwriters Representative and Underwriters’ counsel Counsel of (i) legal opinions from Xxxxxx Xxxxxxxx Xxxxxxx Xxxx & RiegelsXxxxxxx, Cayman Islands counsel to the Company dated as of the Closing Date or the Option Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLPXxxxxx Xxxxxxx Xxxxxxx & Li LLC, the U.S. legal counsel for the Company, dated as of the Closing Date or the Option Closing Date and addressed to the Underwriters, ; and (iii) legal opinions from Xxx Xxx GFE Law OfficesOffice, PRC legal counsel to the Company, dated as of the Closing Date. Each of Date or the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined Option Closing Date and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel addressed to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters Representative shall have received certificates of each of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”)Company, substantially in the form attached hereto as Annex I and dated as of the Closing Date or the Option Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date or the Option Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date or the Option Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Rules and Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters The Representative shall have received a certificate certificates of the Company signed by the Secretary of the Company (Company, dated as of the “Secretary’s Certificate”), substantially in Closing Date or the form attached hereto as Annex II and dated the Option Closing Date, certifyingto the effect that: (i) that each of the Charter Company’s Memorandum and Bylaws is Articles of Association are true and complete, has have not been modified and is are in full force and effect; effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering public offering contemplated by this Agreement are in full force and effect and have not been modified; modified; (iii) as to the good standing accuracy and completeness of all correspondence between the Company; Company or its counsel and the Commission; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the applicable Closing Date or the Option Closing Date, the Underwriters Representative shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) Xxxxxxxx as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters Representative and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Securities Act and all applicable Regulationsrules and regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained Except as contemplated in the Registration Statement General Disclosure Package and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent Prospectus, subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares capital stock or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the UnderwritersRepresentative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(ih) The Underwriters Representative shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IVII.
(ji) The Shares are registered under the Exchange Act and, as of the Closing Date or the Option Closing Date, the Shares shall be listed and listed, admitted and authorized for trading on the Nasdaq Global NASDAQ Capital Market and satisfactory evidence of such action shall have been provided to the UnderwritersRepresentative. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global NASDAQ Capital Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global NASDAQ Capital Market is contemplating terminating such registration or listing. The Firm Shares, the Additional Shares and the Shares underlying the Representative’s Warrant shall be DTC eligible.
(kj) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(lk) 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 Closing Date or the Option Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date or the Option Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(l) At the Closing Date or Option Closing Date, the Company shall issue the Representative’s Warrant to the Representative.
(m) The Company and the Representative shall have entered into an escrow agreement with an entity reasonably satisfactory to both parties pursuant to which $500,000 in proceeds from the Offering shall be deposited in an escrow account for a period of twenty-four (24) months following the Closing Date for purposes of satisfying the initial $500,000 in indemnification obligations set forth in this Agreement. All remaining funds in the escrow account that are not subject to an indemnification claim as of the 24-month period following the Closing Date will be returned to the Company in accordance with the terms of the escrow agreement. The Company shall pay the reasonable fees of the escrow agent.
(n) At the Closing Date or the Option Closing Date, the Underwriters shall have received on and as of such Closing Date satisfactory evidence of the good standing of the Company and its subsidiaries in their respective jurisdictions of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions or, for any such jurisdiction in which evidence of good standing may not be obtained from appropriate governmental authorities, in the form of an opinion of counsel licensed in the applicable jurisdiction.
(o) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect . If any of the CSRC Filings on its websiteconditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, and such notice or if any of acceptance and/or filing results published not having otherwise been rejectedthe certificates, withdrawnopinions, revoked written statements or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect letters furnished to the Company’s proposed overseas listing Representative or to Underwriters’ Counsel pursuant to this Section 7 shall not be reasonably satisfactory in form and substance to the Revised Cybersecurity Review MeasuresRepresentative and to Underwriters’ Counsel, all obligations of the Underwriters 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 shall be confirmed promptly thereafter in writing.
Appears in 2 contracts
Samples: Underwriting Agreement (Global Internet of People, Inc.), Underwriting Agreement (Global Internet of People, Inc.)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Securities as provided herein shall be subject to: (i) the Firm Shares that they have respectively agreed to purchase pursuant to this Agreement (and any Option Shares as to which the option granted in Section 3 has been exercised and the Date of Delivery determined by you is the same as the Closing Time) at the Closing Time and (ii) the Option Shares at the Date of Delivery of the Option Shares, are subject to the accuracy of the representations and warranties of the Company contained herein contained, as of the date hereof and as of the Closing Date Time or the Additional Closing DateDate of Delivery, (ii) as the absence from any certificatescase may be, opinions, written statements or letters furnished and to the Underwriters or to Underwriters’ Counsel accuracy of the representations and warranties of the Company contained in certificates of any officer of the Company delivered pursuant to this Section 7 of any misstatement or omissionthe provisions hereof, (iii) to the performance by the Company of its obligations hereunder, and (iv) each of to the following additional further conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M.p.m. on the date of this Agreement or, Eastern Timewith your consent, at a later time and date not later, however, than 5:30 p.m. New York time on the first business day following the date hereof, or at such later time or on such later date as you may agree to in writing; if the Company has elected to rely upon Rule 462(b), the 462(b) Registration Statement shall have become effective by 10:00 p.m. New York time, Washington, D.C. time, on the date of this Agreement, or ; and at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, Time no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus 462(b) Registration Statement shall have been issued; issued under the 1933 Act and no proceedings for the issuance of such an order that purpose shall have been initiated instituted or threatened; all requests shall be pending or, to your knowledge or the knowledge of the Company, shall be contemplated by the Commission, and any request on the part of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the satisfaction of counsel for the Underwriters’ satisfaction. If the Company has elected to rely upon Rule 430A, a Prospectus or a Term Sheet containing the Rule 430A Information shall have been filed with the Commission in accordance with Rule 424(b) (or a post- effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A).
(b) The Underwriters shall not have reasonably determinedAt the Closing Time, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters you shall have receivedreceived a favorable opinion of Jones, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx Walker, Waechter, Poitevent, Carrere & RiegelsXxxxxxx, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the UnderwritersL.L.P., (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the UnderwritersTime, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant together with applicable laws, regulations, and contractual requirements A copy signed or reproduced copies of such opinion shall have been provided to for each of the Underwriters with consent from such counsel. VCL Law LLP, counsel to the other Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to counsel for the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing DateUnderwriters, to the effect that: :
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as laws of the date hereof State of Delaware with the corporate power and authority to own, lease and operate its properties and to conduct its business as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given described in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving . The Company is qualified to transact business as a prospective Material Adverse Change, whether or not arising from transactions foreign corporation and is in the ordinary course of business.
(e) At good standing in each of the Closing Date, jurisdictions in which the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions ownership or leasing of the Company’s Board 's properties or the nature or conduct of Directors relating its business requires such qualification, except where the failure to the Offering are in full force and do so would not have a material adverse effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwiseother), business, properties, net worth or results of operations, shareholders’ equity, properties or prospects operations of the Company, Company and the Subsidiaries taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(iii) The Underwriters shall have received Each of the Subsidiaries has been duly incorporated and is validly existing as a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, corporation in each case substantially in the form attached as Annex IV.
(j) The Shares are registered good standing under the Exchange Act and, as laws of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence state of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.its
Appears in 2 contracts
Samples: Underwriting Agreement (Superior Energy Services Inc), Underwriting Agreement (Superior Energy Services Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder are subject to purchase the accuracy, at and pay for as of the Securities date hereof and the First Closing Date (as provided herein shall be subject to: if made at the First Closing Date) and, with respect to the Optional Securities, the Option Closing Date (i) as if made at the accuracy Option Closing Date), of the representations and warranties of the Company herein containedcontained herein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, hereunder and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M.4 p.m., Eastern Timetime, on the date of this Agreement, or at such later time and date as the Representative shall approve and all filings required by Rules 424, 430A and 433 under the Securities Act shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time periodmade; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus thereof shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests and any request of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ Representative’s satisfaction.
(b) The Underwriters No Underwriter shall not have reasonably determined, and advised the Company, Company that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable Representative’s opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable Representatives opinion, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) On each Closing Date, the Representative shall have received the favorable opinion and negative assurance letter of Oxxxxx Gxxxxxxx Frome Rxxxxxxxxx & Wxxxxxx LLP, counsel for the Company, dated as of such Closing Date, the form of which is attached as Exhibit B.
(d) On each Closing Date, the Representative shall have received the favorable opinion of Wxxxxx Xxxxxxx Xxxxxxxx & Rxxxxx, intellectual property counsel for the Company, dated as of such Closing Date, the form of which is attached as Exhibit C.
(e) On each Closing Date the Representative shall have received the favorable opinion of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, dated as of such Closing Date, in form and substance satisfactory to the Representative.
(f) There shall have been furnished to the Representative a certificate of the Company, dated as of each Closing Date and addressed to the Representative, signed by the Chief Executive Officer and by the Chief Financial Officer of the Company to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct, as if made at and as of such Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for that purpose have been initiated or are pending or, to their knowledge, contemplated;
(iii) Any and all filings required by Rules 424, 430A, 430B and 430C under the Securities Act have been timely made;
(iv) The signers of said certificate have carefully examined the Registration Statement and the Disclosure Package and the Prospectus, and any amendments or supplements thereto, and such documents contain all statements and information required to be included therein; the Registration Statement or any amendment thereto does not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and the Disclosure Package and the Prospectus or any supplements thereto do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(v) Since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or the Disclosure Package and the Prospectus which has not been so set forth; and
(vi) Since the effective date of the Registration Statement, the Company shall not have sustained any loss by strike, fire, flood, accident or other calamity (whether or not insured), nor shall it have become a party to or the subject of any litigation, which is material to the Company taken as a whole, nor shall there have been a material adverse change in the general affairs, business, key personnel, capitalization, financial position, earnings or net worth of the Company, whether or not arising in the ordinary course of business, which loss, litigation or change, in the Representative’s judgment, shall render it inadvisable to proceed with the delivery of the Securities.
(cg) The Underwriters On the date hereof, and on each Closing Date, the Representative shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions received from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK J.X. Xxxx LLP, U.S. legal counsel independent public or certified public accountants for the Company, a letter dated as of the Closing Date and date hereof addressed to the UnderwritersRepresentative, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as on behalf of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the several Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates , containing statements and information of the Chief Executive Officer and Chief Financial Officer type ordinarily included in accountant’s “comfort letters” to underwriters, delivered according to Statement of the Company Auditing Standards No. 72 (the “Officers’ Certificate”or any successor bulletin), substantially in the form attached hereto as Annex I and dated as of the Closing Date, with respect to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof audited and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted unaudited financial statements that are required to be included and certain financial information contained in the Registration Statement and the Prospectus pursuant (and the Representative shall have received an additional five conformed copies of such accountants’ letter for each of the several Underwriters).
(h) The “lock-up” agreements between the Representatives and the stockholders, officers and directors of the Company listed on Schedule II, delivered to the Regulations which are not so includedRepresentative on or before the date hereof, shall be in full force and effect on each Closing Date.
(viii) subsequent to Since the respective dates as date of which information is given in the Registration Statement and the Prospectus, there has not been any a Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of businessEffect.
(ej) At On or before each of the Closing Date, the Representative and counsel for the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form certificates, agreements, opinions and substance other documents as they may reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligiblerequire.
(k) On or before the First Closing Date, the Common Stock shall have been approved for listing on the NYSE Amex LLC.
(l) FINRA shall have confirmed that it has not raised any no objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) No action . All such opinions, certificates, letters and documents shall be in compliance with the provisions hereof only if they are satisfactory in form and substance to the Representative and to counsel for the Underwriters. The Company shall furnish the Representative with such conformed copies of such opinions, certificates, letters and other documents as the Representative shall reasonably request. If any of the conditions specified in this Section 6 shall not have been taken fulfilled when and no statuteas required by this Agreement, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the First Closing Date or the Option Closing Date, prevent as the issuance or sale case may be, by the Representative. Any such cancellation shall be without liability of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant . Notice of such cancellation shall be given to the Revised Cybersecurity Review MeasuresCompany in writing, or by telegraph or telephone and confirmed in writing.
Appears in 2 contracts
Samples: Underwriting Agreement (Iaso Pharma Inc), Underwriting Agreement (Iaso Pharma Inc)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters of any Designated Securities under the Pricing Agreement relating to purchase and pay for the such Designated Securities as provided herein shall be subject to: (i) subject, in the accuracy of Representatives’ discretion, to the condition that all representations and warranties and other statements of the Company herein contained, as of Operating Partnership and the date hereof Parent Guarantor included or incorporated by reference in the Pricing Agreement relating to such Designated Securities are true and correct at and as of the Closing Date or Time of Delivery for such Designated Securities and the Additional Closing Date, (ii) condition that prior to such Time of Delivery the absence from any certificates, opinions, written statements or letters furnished Operating Partnership and the Parent Guarantor shall have performed all of their obligations hereunder theretofore to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunderbe performed, and (iv) each of the following additional conditions.:
(ai) The Registration Statement shall have become effective Preliminary Prospectus and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating relation to the description of the applicable Designated Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time periodperiod prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; and, at or prior (ii) each Issuer Free Writing Prospectus relating to the Closing Date and Designated Securities (including, without limitation, an Issuer Free Writing Prospectus setting forth the actual time final terms of the Closing, Designated Securities) shall have been filed with the Commission pursuant to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(a) hereof; (iii) no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus thereof shall have been issued; issued and no proceedings proceeding for that purpose or pursuant to Section 8A of the issuance of such an order Securities Act shall have been initiated or threatenedthreatened by the Commission; and (iv) all requests for additional information on the part of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.reasonable satisfaction of the Representatives;
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinionRepresentatives such opinion or opinions, addressed dated the Time of Delivery, with respect to the Underwriters good standing status of the Operating Partnership and dated the Closing Date or any Additional Closing DateParent Guarantor, the Indenture, the Securities, the Guarantee, the Registration Statement, the Prospectus, the Time of Sale Information and such other related matters as the case Representatives may bereasonably request, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company such counsel shall have furnished to such counsel received such documents and information as such counsel they may reasonably request to enable them to pass on upon such matters. XxxXxxxxx Law Offices;
(c) Xxxxxx Xxxxxxxx LLP, PRC counsel to the UnderwritersOperating Partnership and the Parent Guarantor, shall have furnished to the Representative its Representatives their written opinion, addressed opinion or opinions dated the Time of Delivery in form and substance reasonably satisfactory to the Underwriters Representatives, substantially to the effect of Annex II hereto;
(d) On the date of the applicable Pricing Agreement for such Designated Securities and at the Time of Delivery for such Designated Securities, PricewaterhouseCoopers LLP, the independent registered public accounting firm of the Operating Partnership and the Parent Guarantor, which has audited the financial statements of the Operating Partnership and its consolidated subsidiaries and of the Parent Guarantor and its consolidated subsidiaries, included or incorporated by reference in the Registration Statement, shall have furnished to the Representatives letters, dated the Closing Date or any Additional Closing Date, as the case may berespective dates of delivery, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates Representatives, containing statements and information of the Chief Executive Officer type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially certain financial information contained or incorporated by reference in the form attached hereto as Annex I Registration Statement, the Preliminary Prospectus and dated as of the Closing Date, to the effect that: Prospectus;
(i) The Parent Guarantor and its subsidiaries (including, without limitation, the conditions set forth in subsection (a) of this Section 7 Operating Partnership), taken as a whole, have been satisfied, (ii) as not sustained since the date of the date hereof latest audited financial statements included or incorporated by reference in the Time of Sale Information and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained Prospectus any material loss or interference with its businessesbusiness from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commissiondecree, (vi) there are no pro forma or except as adjusted financial statements that are required to be included set forth in the Registration Statement Time of Sale Information and the Prospectus pursuant to the Regulations which are not so included, and (viiii) subsequent to since the respective dates as of which information is given in the Registration Statement Statement, the Preliminary Prospectus and the ProspectusProspectus (without giving effect to any amendment thereof or supplement thereto subsequent to the date of the Pricing Agreement relating to the Designated Securities), except as set forth in Schedule IV to the applicable Pricing Agreement, there has not been any Material Adverse Change change in the beneficial interests of the Parent Guarantor (other than (x) issuances of beneficial interests (A) pursuant to equity-based awards granted in the ordinary course of business to trustees or employees of the Parent Guarantor or the Operating Partnership, (B) upon exercise of options and upon conversion or redemption of convertible or redeemable securities, in each case which were outstanding as of the date of the latest audited financial statements included or incorporated by reference in the Time of Sale Information and the Prospectus, and (C) upon the exchange of Operating Partnership interests for beneficial interests in the Parent Guarantor and (y) repurchases of the Parent Guarantor’s beneficial interests under the Parent Guarantor’s share repurchase program) or in the partnership interests in the Operating Partnership or the capital stock, partnership, membership or beneficial interests of any of its subsidiaries, or any change in the long-term debt of the Parent Guarantor and its subsidiaries (including, without limitation, the Operating Partnership), taken as a whole, or any material adverse change, or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such informationmaterial adverse change, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in affecting the business, condition (financial or otherwise)properties, management, results of operations, shareholders’ equity, properties financial condition or prospects of the CompanyParent Guarantor and its consolidated subsidiaries (including, without limitation, the Operating Partnership), taken as a whole, including but not limited except as set forth in the Time of Sale Information and the Prospectus (without giving effect to any amendment thereof or supplement thereto subsequent to the occurrence date of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamitythe Pricing Agreement relating to the Designated Securities), the effect of which, in any such case described abovein clause (i) or (ii), is, is in the reasonable judgment of the Underwriters, Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the sale public offering or the delivery of the Designated Securities and the Guarantee on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus;
(f) On or Offering as contemplated hereby.
after the date of the Pricing Agreement relating to the Designated Securities, (i) The Underwriters no downgrading shall have received a lock-up agreement from each Lock-Up Partyoccurred in the rating accorded the Operating Partnership’s debt securities or the Parent Guarantor’s debt securities or, duly executed if applicable, preferred shares of beneficial interest by any “nationally recognized statistical rating organization”, as the term is defined by the applicable Lock-Up Party, Commission in each case substantially in the form attached as Annex IV.
(jSection 3(a)(62) The Shares are registered under of the Exchange Act andand (ii) no such organization shall have publicly announced that it has under surveillance or review, as with possible negative implications, its rating of any of the Closing DateOperating Partnership’s debt securities or the Parent Guarantor’s debt securities or preferred shares;
(g) On or after the date of the Pricing Agreement relating to the Designated Securities, there shall not have occurred any of the Shares shall be listed and admitted and authorized for following: (i) trading on the Nasdaq Global Market and satisfactory evidence of such action generally shall have been provided suspended or materially limited on the New York Stock Exchange or the over-the-counter market; (ii) trading of any securities issued or guaranteed by the Operating Partnership or the Parent Guarantor shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities shall have been declared by federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services; or (iv) there shall have occurred any outbreak or escalation of hostilities or acts of terrorism involving the United States or declaration of national emergency or war by the United States or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment of the Representatives, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Designated Securities on the terms and in the manner contemplated by this Agreement, the Preliminary Prospectus, the Time of Sale Information and the Prospectus; and
(h) The Operating Partnership and the Parent Guarantor shall have furnished or caused to be furnished to the Underwriters. The Company shall have taken no action designed to terminate, Representatives at the Time of Delivery for the Designated Securities a certificate or likely to have the effect certificates of terminating, the registration officers of the Shares under Operating Partnership and the Exchange Act or delisting or suspending Parent Guarantor in such form and executed by such officers of the Shares from trading on Operating Partnership and the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares Parent Guarantor as shall be DTC eligible.
satisfactory to the Representatives, as to the accuracy of the representations and warranties of the Operating Partnership and the Parent Guarantor herein at and as of such Time of Delivery, as to the performance by the Operating Partnership and the Parent Guarantor of all of their obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth in Sections 8(a), 8(e) and 8(f) hereof and as to such other matters (k) FINRA shall have confirmed that it has not raised any objection including, without limitation, with respect to compliance with debt agreements and instruments) as the fairness and reasonableness of the underwriting terms and arrangementsRepresentatives may reasonably request.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 2 contracts
Samples: Underwriting Agreement (Brandywine Operating Partnership, L.P.), Underwriting Agreement (Brandywine Operating Partnership, L.P.)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Firm Securities or the Option Securities, as the case may be, as provided herein shall be subject to: (i) the accuracy of the representations and warranties of the Company herein contained, as of the date hereof and as of the Closing Date or the Additional and each Option Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters Representative or to Underwriters’ Counsel pursuant to this Section 7 6 of any material misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and (iv) each of the following additional conditions.
(a) The Registration Statement shall have become effective and all necessary regulatory and or listing approvals shall have been received not later than 5:30 P.M.p.m., Eastern TimeNew York time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the UnderwritersRepresentative. If the Company shall have elected to rely upon Rule 430A under the Securities Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof hereof and a form of the Prospectus containing information relating to the description of the Transaction Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and or the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or or, to the knowledge of the Company, threatened; all requests any request of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ Representative’s satisfaction; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Underwriters Representative shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ Representative’s reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ Representative’s reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading; provided, however, that if in the Representative’s opinion such deficiency is curable the Representative shall have given the Company reasonable notice of such deficiency and a reasonable chance to cure such deficiency.
(c) The Underwriters Representative shall have received, in form satisfactory to received the Underwriters and Underwriters’ counsel written opinions of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. Xxxxxxx LLP legal counsel for the Company, dated as of the Closing Date and each Option Closing Date, as applicable, and addressed to the UnderwritersRepresentative substantially in the form attached hereto as Annex II, and (iiiii) legal opinions from Xxx Xxx Law OfficesXxxxx Peabody LLP, PRC intellectual property legal counsel to the Company, Company dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined Date and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional each Option Closing Date, as the case may beapplicable, and (ii) negative assurance letter, addressed to the Underwriters and dated Representative substantially in the Closing Date or any Additional Closing Date, form attached hereto as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the RepresentativeAnnex III.
(d) The Underwriters Representative shall have received certificates a certificate of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”)Company, substantially in the form attached hereto as Annex I and dated as of the Closing Date, Date and each Option Closing Date to the effect that: (i) the conditions condition set forth in subsection (a) of this Section 7 have 6 has been satisfied, (ii) as of the date hereof and as of the applicable Closing Date or Option Closing Date, the representations and warranties of the Company set forth in Section 2 hereof this Agreement are accurate, (iii) as of the applicable Closing Date or Option Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businessesbusiness, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereof has been issued and no proceedings therefor have been initiated or or, to the knowledge of the Company, threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included or incorporated by reference in the Registration Statement and the Prospectus pursuant to the Rules and Regulations which are not so includedincluded or incorporated by reference, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, Prospectus there has not been any Material Adverse Change Effect or any development involving a prospective Material Adverse ChangeEffect, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement Agreement, the Closing Date and on the each Option Closing Date, the Underwriters Representative shall have received a “cold comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, the date of delivery and addressed to the Underwriters Representative and in form and substance satisfactory to the Underwriters Representative and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Securities Act and all applicable the Rules and Regulations, and stating, as of such the date of delivery (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to the date of such dateletter), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement and the Prospectus covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(hf) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of and any amendment thereof) and the Prospectus (exclusive of any supplement thereto)Option Closing Date, there shall not have been any change in the Ordinary Shares capital stock or long-term debt of the Company or any change or development involving a change, whether that would cause, or not arising from transactions in the ordinary course of businessreasonably be expected to cause, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a wholeMaterial Adverse Effect, including but not limited to to/from the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable sole judgment of the UnderwritersRepresentative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale Offering on the terms and in the manner contemplated in the Prospectus (exclusive of Securities or Offering as contemplated herebyany supplement).
(ig) The Underwriters Prior to the execution and delivery of this Agreement, the Representative shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached hereto as Annex IV.I.
(jh) The Shares are Common Stock is registered under the Exchange Act and, as of the Closing Date, the Firm Shares and Option Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Capital Market and satisfactory evidence of such action shall have been provided to the UnderwritersRepresentative. The Company shall have taken no action designed to terminateto, or likely to have the effect of terminating, terminating the registration of the Firm Shares or Option Shares under the Exchange Act or delisting or suspending the Shares from trading on its Common Stock from the Nasdaq Global Capital Market, nor will has the Company have received any information suggesting that the Commission or the Nasdaq Global Capital Market is contemplating terminating such registration or of listing. The Firm Shares Securities, Option Securities, Warrant Shares, the Underwriters’ Warrants and the shares of Common Stock underlying the Underwriters’ Warrants shall be DTC eligible.
(ki) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(lj) 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 Closing Date or any Option Closing Date, prevent the issuance or sale of the any Transaction Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the any Transaction Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(mk) The Company shall have furnished the Underwriters Representative and Underwriters’ Counsel with a Certificate of Good Standing for the Company certified by the Secretary of State of Delaware dated as of the Closing Date and each Option Closing Date.
(l) The Company shall have furnished the Representative and Underwriters’ Counsel with such other certificates, opinions or other documents as they may have reasonably requested.
(nm) The CSRC On each Closing Date, there shall have concluded been issued to the CSRC Filings and published Underwriters, a Underwriters' Warrant in the filing results on January 2, 2024 in respect form attached hereto as Annex IV. If any of the CSRC Filings on its websiteconditions specified in this Section 6 shall not have been fulfilled when and as required by this Agreement, and such notice or if any of acceptance and/or filing results published not having otherwise been rejectedthe certificates, withdrawnopinions, revoked written statements or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect letters furnished to the Company’s proposed overseas listing Representative or to Underwriters’ Counsel pursuant to this Section 6 shall not be reasonably satisfactory in form and substance to the Revised Cybersecurity Review MeasuresRepresentative and to Underwriters’ Counsel, all obligations of the Underwriters 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 by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
Appears in 2 contracts
Samples: Underwriting Agreement (Perseon Corp), Underwriting Agreement (Perseon Corp)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters of any Designated Securities under the Pricing Agreement relating to purchase and pay for the such Designated Securities as provided herein shall be subject to: (i) subject, in the accuracy of Representatives’ discretion, to the condition that all representations and warranties and other statements of the Company herein contained, as of Operating Partnership and the date hereof Parent Guarantor included or incorporated by reference in the Pricing Agreement relating to such Designated Securities are true and correct at and as of the Closing Date or Time of Delivery for such Designated Securities and the Additional Closing Date, (ii) condition that prior to such Time of Delivery the absence from any certificates, opinions, written statements or letters furnished Operating Partnership and the Parent Guarantor shall have performed all of their obligations hereunder theretofore to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunderbe performed, and (iv) each of the following additional conditions.:
(ai) The Registration Statement shall have become effective Preliminary Prospectus and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating relation to the description of the applicable Designated Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time periodperiod prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; and, at or prior (ii) each Issuer Free Writing Prospectus relating to the Closing Date and Designated Securities (including, without limitation, an Issuer Free Writing Prospectus setting forth the actual time final terms of the Closing, Designated Securities) shall have been filed with the Commission pursuant to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(a) hereof; (iii) no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus thereof shall have been issued; issued and no proceedings proceeding for that purpose or pursuant to Section 8A of the issuance of such an order Securities Act shall have been initiated or threatenedthreatened by the Commission; and (iv) all requests for additional information on the part of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.reasonable satisfaction of the Representatives;
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinionRepresentatives such opinion or opinions, addressed dated the Time of Delivery, with respect to the Underwriters good standing status of the Operating Partnership and dated the Closing Date or any Additional Closing DateParent Guarantor, the Indenture, the Securities, the Guarantee, the Registration Statement, the Prospectus, the Time of Sale Information and such other related matters as the case Representatives may bereasonably request, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company such counsel shall have furnished to such counsel received such documents and information as such counsel they may reasonably request to enable them to pass on upon such matters. XxxXxxxxx Law Offices;
(c) Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxx LLP, PRC counsel to the UnderwritersOperating Partnership and the Parent Guarantor, shall have furnished to the Representative its Representatives their written opinion, addressed opinion or opinions dated the Time of Delivery in form and substance reasonably satisfactory to the Underwriters Representatives, substantially to the effect of Xxxxx XX hereto;
(d) Xxxxx Xxxxxx, Senior Vice President, General Counsel and Secretary to the Operating Partnership and the Parent Guarantor, shall have furnished to the Representatives his written opinion or opinions dated the Closing Date Time of Delivery in form and substance reasonably satisfactory to the Representatives, substantially to the effect of Xxxxx XXX hereto;
(e) On the date of the applicable Pricing Agreement for such Designated Securities and at the Time of Delivery for such Designated Securities, PricewaterhouseCoopers LLP, the independent registered public accounting firm of the Operating Partnership and the Parent Guarantor, which has audited the financial statements of the Operating Partnership and its consolidated subsidiaries and of the Parent Guarantor and its consolidated subsidiaries, included or any Additional Closing Dateincorporated by reference in the Registration Statement, as shall have furnished to the case may beRepresentatives letters, dated the respective dates of delivery, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates Representatives, containing statements and information of the Chief Executive Officer type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially certain financial information contained or incorporated by reference in the form attached hereto as Annex I Registration Statement, the Preliminary Prospectus and dated as of the Closing Date, to the effect that: Prospectus;
(i) The Parent Guarantor and its subsidiaries (including, without limitation, the conditions set forth in subsection (a) of this Section 7 Operating Partnership), taken as a whole, have been satisfied, (ii) as not sustained since the date of the date hereof latest audited financial statements included or incorporated by reference in the Time of Sale Information and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained Prospectus any material loss or interference with its businessesbusiness from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commissiondecree, (vi) there are no pro forma or except as adjusted financial statements that are required to be included set forth in the Registration Statement Time of Sale Information and the Prospectus pursuant to the Regulations which are not so included, and (viiii) subsequent to since the respective dates as of which information is given in the Registration Statement Statement, the Preliminary Prospectus and the ProspectusProspectus (without giving effect to any amendment thereof or supplement thereto subsequent to the date of the Pricing Agreement relating to the Designated Securities), except as set forth in Schedule IV to the applicable Pricing Agreement, there has not been any Material Adverse Change change in the beneficial interests of the Parent Guarantor (other than (x) issuances of beneficial interests (A) pursuant to equity-based awards granted in the ordinary course of business to trustees or employees of the Parent Guarantor or the Operating Partnership, (B) upon exercise of options and upon conversion or redemption of convertible or redeemable securities, in each case which were outstanding as of the date of the latest audited financial statements included or incorporated by reference in the Time of Sale Information and the Prospectus, and (C) upon the exchange of Operating Partnership interests for beneficial interests in the Parent Guarantor and (y) repurchases of the Parent Guarantor’s beneficial interests under the Parent Guarantor’s share repurchase program) or in the partnership interests in the Operating Partnership or the capital stock, partnership, membership or beneficial interests of any of its subsidiaries, or any change in the long-term debt of the Parent Guarantor and its subsidiaries (including, without limitation, the Operating Partnership), taken as a whole, or any material adverse change, or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such informationmaterial adverse change, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in affecting the business, condition (financial or otherwise)properties, management, results of operations, shareholders’ equity, properties financial condition or prospects of the CompanyParent Guarantor and its consolidated subsidiaries (including, without limitation, the Operating Partnership), taken as a whole, including but not limited except as set forth in the Time of Sale Information and the Prospectus (without giving effect to any amendment thereof or supplement thereto subsequent to the occurrence date of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamitythe Pricing Agreement relating to the Designated Securities), the effect of which, in any such case described abovein clause (i) or (ii), is, is in the reasonable judgment of the Underwriters, Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Securities and the Guarantee on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus;
(g) On or after the date of the Pricing Agreement relating to the Designated Securities, (i) no downgrading shall have occurred in the rating accorded the Operating Partnership’s debt securities or the Parent Guarantor’s debt securities or, if applicable, preferred shares of beneficial interest by any “nationally recognized statistical rating organization”, as the term is defined by the Commission in Section 3(a)(62) of the Exchange Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Operating Partnership’s debt securities or the Parent Guarantor’s debt securities or preferred shares;
(h) On or after the date of the Pricing Agreement relating to the Designated Securities, there shall not have occurred any of the following: (i) trading generally shall have been suspended or materially limited on the New York Stock Exchange or the over-the-counter market; (ii) trading of any securities issued or guaranteed by the Operating Partnership or the Parent Guarantor shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities shall have been declared by federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services; or (iv) there shall have occurred any outbreak or escalation of hostilities or acts of terrorism involving the United States or declaration of national emergency or war by the United States or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment of the Representatives, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Designated Securities or Offering as on the terms and in the manner contemplated hereby.by this Agreement, the Preliminary Prospectus, the Time of Sale Information and the Prospectus; and
(i) The Underwriters Operating Partnership and the Parent Guarantor shall have received furnished or caused to be furnished to the Representatives at the Time of Delivery for the Designated Securities a lock-up agreement from each Lock-Up Party, duly certificate or certificates of officers of the Operating Partnership and the Parent Guarantor in such form and executed by such officers of the applicable Lock-Up Party, in each case substantially in Operating Partnership and the form attached Parent Guarantor as Annex IV.
(j) The Shares are registered under shall be satisfactory to the Exchange Act andRepresentatives, as to the accuracy of the Closing Date, representations and warranties of the Shares shall be listed Operating Partnership and admitted the Parent Guarantor herein at and authorized for trading on the Nasdaq Global Market and satisfactory evidence as of such action shall have been provided Time of Delivery, as to the Underwriters. The Company shall have taken no action designed performance by the Operating Partnership and the Parent Guarantor of all of their obligations hereunder to terminatebe performed at or prior to such Time of Delivery, or likely as to have the effect of terminatingmatters set forth in Sections 8(a), the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market8(e) and 8(f) hereof and as to such other matters (including, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection without limitation, with respect to compliance with debt agreements and instruments) as the fairness and reasonableness of the underwriting terms and arrangementsRepresentatives may reasonably request.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 2 contracts
Samples: Underwriting Agreement (Brandywine Operating Partnership, L.P.), Underwriting Agreement (Brandywine Operating Partnership, L.P.)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder are subject to purchase the accuracy, as of the date hereof and pay for the Securities Closing Date (as provided herein shall be subject to: (i) if made at the accuracy Closing Date), of the representations and warranties of the Company herein containedcontained herein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its their obligations hereunder, hereunder and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with Section 4(a) hereof; all filings (including, without limitation, the terms thereof and a form Final Term Sheet) required by Rule 424(b) or Rule 433 of the Prospectus containing information relating to the description of the Securities Rules and the method of distribution and similar matters Regulations shall have been filed with the Commission pursuant to Rule 424(b) made within the applicable time period; andperiods prescribed by such Rules, at or prior to and no such filings will have been made without the Closing Date and the actual time consent of the Closing, Representatives; no stop order suspending the effectiveness of the Registration Statement or any part thereofamendment or supplement thereto, preventing or any amendment thereof, nor suspending or preventing the use of the General Disclosure Packageany Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or the Prospectus, or suspending the qualification of the Notes for offering or sale in any jurisdiction shall have been issued; no proceedings for the issuance of any such an order shall have been initiated or threatenedthreatened pursuant to Section 8A of the Securities Act; all requests no notice of objection of the Commission to use the Registration Statement or any post-effective amendment thereto shall have been received by the Company; and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been disclosed to the Representatives and complied with to the Representatives’ satisfaction.
(b) No Underwriter shall have been advised by the Company, or shall have discovered and disclosed to the Company, that the Registration Statement, the General Disclosure Packagemost recent Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, thereto contains an untrue statement of fact which, in the opinion of the Representatives or of counsel to the Underwriters’ reasonable opinion, is material, or omits to state a any fact which, in the opinion of the Representatives or of counsel to the Underwriters’ reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) The Underwriters All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Notes, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have receivedfurnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) The Representatives shall have received from Xxxxx Xxxx LLP, in form satisfactory to counsel for the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & RiegelsCompany, Cayman Islands counsel to the Company dated as of the Closing Date and opinion or opinions, addressed to the Underwriters, dated the Closing Date, in form and substance satisfactory to the Representatives and substantially in the form of Exhibits B.
(iie) legal opinions and negative assurance letter The Representatives shall have received from DLA Piper UK LLP, U.S. legal counsel for the Company’s General Counsel the opinion or opinions, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each , in form and substance satisfactory to the Representatives and substantially in the form of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion Exhibit C.
(f) The Representatives shall have been provided to the Underwriters with consent received from such counsel. VCL Law Weil, Gotshal & Xxxxxx LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinionsuch opinion or opinions, addressed to the Underwriters and Underwriters, dated the Closing Date or any Additional Closing Dateand in form and substance satisfactory to the Representatives, with respect to the Notes, Indenture, Registration Statement, Prospectus and Disclosure Package and other related matters as the case Representatives may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may bereasonably require, and the Company shall have furnished to such counsel such documents and information as such counsel they may reasonably request to enable for the purpose of enabling them to pass on upon such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, .
(g) The Representatives shall have furnished to the Representative its written opinionreceived a certificate, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of signed by the Chief Executive Officer Officer, the President or any Vice President of the Company and by the Chief Financial Officer or Chief Accounting Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) there shall not have been, since the conditions set forth date hereof, since the Applicable Time or since the respective dates as of which information is given in subsection (a) the Prospectus or the Disclosure Package, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of this Section 7 have been satisfiedthe Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business; (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 1 hereof are accuratetrue and correct with the same force and effect as though expressly made at and as of Closing Date, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company has complied with all agreements and satisfied all conditions on its part to be performed or complied with hereunder on satisfied at or prior thereto have been duly performed or complied with, to Closing Date 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 or contemplated by the Commission.
(h) Except as described in the most recent Preliminary Prospectus and the Prospectus, (i) neither the Company has not sustained nor any material of the Company’s Subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its businessesbusiness from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, order or decree or (vii) no stop order suspending since such date there shall not have been any change in the effectiveness capital stock or long-term debt of the Registration Statement Company or any amendment thereof has been issued and no proceedings therefor have been initiated of the Company’s Subsidiaries or threatened by the Commissionany change, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Changechange, whether in or not arising from transactions affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, business or prospects of the Company and the Company’s Subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the ordinary course judgment of businessthe Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Notes or on the terms and in the manner contemplated in the Prospectus.
(ei) At each Concurrently with the execution of the Closing Datethis Agreement, the Underwriters Representatives shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”)from KPMG LLP, substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Dateindependent registered public accounting firm, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letterinitial comfort letter”) as of each such date, addressed to the Underwriters Representatives on behalf of the Underwriters, dated the date hereof, and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, Representatives (i) confirming that they are an independent certified registered public accountants with respect to the Company accounting firm within the meaning of the Securities Act and all are in compliance with the applicable Regulationsrequirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Preliminary Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(j) The Representatives shall have received a “bring-down comfort” letter (the “bring-down comfort letter”) from KPMG LLP, the Company’s independent registered public accounting firm, addressed to the Representatives on behalf of the Underwriters, dated the Closing Date, and in form and substance satisfactory to the Representatives (i) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down comfort letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) three days prior to such datethe date of the bring-down comfort letter), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such the initial comfort letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial comfort letter.
(gk) On the date of this Agreement and Prior to or on the Closing Date, the Company Representatives shall have been furnished to by the Representative, a certificate on behalf of Company such additional documents and certificates as the Company, dated Representatives or counsel for the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance Underwriters may reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXXrequest.
(hl) Subsequent to the execution and delivery of this Agreement and prior Agreement, (i) no downgrading shall have occurred in the rating accorded to the Closing Date ordebt securities of the Company, if earlieror any of the Company’s Subsidiaries by any “nationally recognized statistical rating organization” (as that term is defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has any such debt securities under surveillance or review with possible negative implications.
(m) Subsequent to the dates as execution and delivery of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto)this Agreement, there shall not have been occurred any change of the following: (i) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or in the Ordinary Shares over-the-counter market, or long-term debt trading in any securities of the Company on any exchange or any change or development involving a change, whether or not arising from transactions in the ordinary course over-the-counter market, shall have been suspended or materially limited or the settlement of businesssuch trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction; (ii) a banking moratorium shall have been declared by federal or state authorities; (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States; or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the UnderwritersRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale offering of Securities the Notes or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by on the applicable Lock-Up Party, in each case substantially terms and in the form attached as Annex IV.
(j) The Shares are registered under manner contemplated in the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requestedProspectus.
(n) The CSRC Company shall have concluded executed and delivered a Board Resolution (as defined in the CSRC Filings Indenture) and published an Officers’ Certificate (as defined in the filing results on January 2, 2024 Indenture) in respect of the CSRC Filings on its websiteNotes and the Underwriters shall have received copies thereof. All opinions, certificates, letters and such notice documents referred to in this Section 6 will be in compliance with the provisions of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Company is not required to apply for cybersecurity review with the CAC with respect will furnish to the Company’s proposed overseas listing pursuant to Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Revised Cybersecurity Review MeasuresRepresentatives will reasonably request.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Securities Firm Shares or the Option Shares, as the case may be, as provided herein shall be subject to: (i) the accuracy of the representations and warranties of the Company herein contained, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from of any misstatement or omission in any certificates, opinions, written statements or letters furnished to the Underwriters Representative or to Underwriters’ Representative’s Counsel pursuant to this Section 7 of any misstatement or omission6, (iii) the performance by the Company of its obligations hereunder, and (iv) each of the following additional conditions. For purposes of this Section 6, the terms “Closing Date” shall refer to both the Closing Date and Option Closing Date (if any), and “Closing” shall refer to the Closing of both Firm Shares and the Option Shares (if any), as the case may be, and each of the foregoing and following conditions must be satisfied as of each Closing.
(a) The Registration Statement shall have become effective and all necessary regulatory and or listing approvals shall have been received not later than 5:30 P.M.p.m., Eastern TimeNew York time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the UnderwritersRepresentative. If the Company shall have elected to rely upon Rule 430A under the Securities Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof hereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and or the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests any request of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ Representative’s satisfaction; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Underwriters Representative shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ Representative’s reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ Representative’s reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading; provided, however, that if in the Representative’s opinion such deficiency is curable Representative shall have given the Company reasonable notice of such deficiency and a reasonable chance to cure such deficiency.
(c) The Underwriters Representative shall have received, in form satisfactory to received the Underwriters and Underwriters’ counsel written opinions of (i) Lxxx & Lxxx LLP, the U.S., legal opinions from Xxxxxx Xxxxxxxx & Riegelscounsel for the Company, including negative assurance language, dated as of the Closing Date and addressed to the Representative in form and substance reasonably satisfactory to the Underwriters; and (ii) Ogier, Cayman Islands counsel to for the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance reasonably satisfactory to the RepresentativeUnderwriters.
(d) The Underwriters Representative shall have received certificates a certificate of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”)Company, substantially in the form attached hereto as Annex I and dated as of the each Closing Date, Date to the effect that: (i) the conditions condition set forth in subsection (a) of this Section 7 have 6 has been satisfied, (ii) as of the date hereof and as of the applicable Closing Date, the representations and warranties of the Company set forth in Section Sections 1 and 2 hereof are accurate, (iii) as of the applicable Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its their respective businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included or incorporated by reference in the Registration Statement and the Prospectus pursuant to the Rules and Regulations which are not so includedincluded or incorporated by reference, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, Prospectus there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters Representative shall have received a “cold comfort” letter and a bring-down comfort letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters Representative and in form and substance satisfactory to the Underwriters Representative and Underwriters’ Representative’s Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Securities Act and all applicable the Rules and Regulations, and stating, as of such the date of delivery (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to the date of such dateletter), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement and the Prospectus covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(hf) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto)Date, there shall not have been any change in the Ordinary Shares capital stock or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, Company including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable sole judgment of the UnderwritersRepresentative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale Offering on the terms and in the manner contemplated in the Prospectus (exclusive of Securities or Offering as contemplated herebyany supplement).
(ig) The Underwriters Prior to the execution and delivery of this Agreement, the Representative shall have received a lockLock-up agreement Up Agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached hereto as Annex IV.I.
(jh) The Ordinary Shares are shall have been registered under the Exchange Act and, as of the Closing Date, the Ordinary Shares shall be listed and admitted and authorized for trading on the NYSE American or Nasdaq Global Capital Market and satisfactory evidence of such action shall have been provided to the UnderwritersRepresentative. The Company shall have taken no action designed to terminateto, or likely to have the effect of terminating, terminating the registration of the Ordinary Shares under the Exchange Act or delisting or suspending from trading the Ordinary Shares from trading on the NYSE American or Nasdaq Global Capital Market, nor will has the Company have received any information suggesting that the Commission or the NYSE American or Nasdaq Global Capital Market is contemplating terminating such registration or of listing. The Firm Shares shall be DTC eligible.
(ki) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(lj) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(mk) The Company shall have furnished the Underwriters Representative with a Certificate of Good Standing for the Company certified by the Registrar of Companies of the Cayman Islands, dated no earlier than two (2) Business Days of the date of this Agreement.
(l) The Company shall have furnished the Representative and Underwriters’ Counsel with such other certificates, opinions or other documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect . If any of the CSRC Filings on its websiteconditions specified in this Section 6 shall not have been fulfilled when and as required by this Agreement, and such notice or if any of acceptance and/or filing results published not having otherwise been rejectedthe certificates, withdrawnopinions, revoked written statements or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect letters furnished to the CompanyRepresentative or to Representative’s proposed overseas listing Counsel pursuant to this Section 6 shall not be reasonably satisfactory in form and substance to the Revised Cybersecurity Review MeasuresRepresentative or to Representative’s Counsel, all obligations of the Underwriters 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 by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters to purchase and pay for the Securities Shares as provided herein shall be subject to: (i) to the accuracy accuracy, as of the date hereof and the Closing Date and any later date on which Option Shares are to be purchased, as the case may be, of the representations and warranties of the Company herein containedherein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, hereunder and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 2:00 P.M., Eastern TimeSan Francisco time, on the date following the date of this Agreement, or at such later time and date as shall have been be consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof you; and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus thereof shall have been issued; issued and no proceedings for the issuance of such an order that purpose shall have been initiated or, to the knowledge of the Company or threatened; all requests any Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, Statement or the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the satisfaction of Underwriters’ satisfaction' Counsel.
(b) The Underwriters shall not have reasonably determined, All corporate proceedings and advised the Company, that the Registration Statementother legal matters in connection with this Agreement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement form of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not and the registration, authorization, issue, sale and delivery of the Shares, shall have been any Material Adverse Change or any development involving a prospective Material Adverse Changereasonably satisfactory to Underwriters' Counsel, whether or not arising from transactions and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in the ordinary course of businessthis Section.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(hc) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date orDate, if earlieror any later date on which Option Shares are to be purchased, as the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto)case may be, there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of earnings, operations, shareholders’ equity, properties business or business prospects of the CompanyCompany and its subsidiaries considered as one enterprise from that set forth in the Registration Statement or Prospectus, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described aboveyour sole judgment, is, in the reasonable judgment of the Underwriters, so is material and adverse as to make it and that makes it, in your sole judgment, impracticable or inadvisable to proceed with the sale public offering of Securities or Offering the Shares as contemplated herebyby the Prospectus.
(d) You shall have received on the Closing Date and on any later date on which Option Shares are to be purchased, as the case may be, the following opinion of counsel for the Company dated the Closing Date or such later date on which Option Shares are to be purchased addressed to the Underwriters and with reproduced copies or signed counterparts thereof for each of the Underwriters, to the effect that:
(i) The Company and each subsidiary has been duly incorporated or organized and is validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization;
(ii) The Company and each subsidiary has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus;
(iii) The Company and each subsidiary is duly qualified to do business and is in good standing in each jurisdiction, if any, in which the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and its subsidiaries considered as one enterprise. To such counsel's knowledge, the Company does not own or control, directly or indirectly, any corporation, association or other entity other than Xenotech, Inc. and Xenotech, L.P.;
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus under the caption "Capitalization" as of the date stated therein, the issued and outstanding shares of capital stock of the Company have been duly and validly issued and are fully paid and nonassessable, and, to such counsel's knowledge, will not have been issued in violation of or subject to any preemptive right, co-sale right, registration right, right of first refusal or other similar right;
(v) All issued and outstanding shares of capital stock of Xenotech, Inc. have been duly authorized and validly issued and are fully paid and nonassessable, and, to such counsel's knowledge, have not been issued in violation of or subject to any preemptive right, co-sale right, registration right, right of first refusal or other similar right and the issued and outstanding shares owned by the Company are free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest;
(vi) All issued and outstanding limited partnership interests of Xenotech, L.P. have been duly authorized and validly issued and are fully paid and nonassessable, and, to such counsel's knowledge, have not been issued in violation of or subject to any preemptive right, or other similar right, and the limited partnership interests owned by the Company are free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest;
(vii) The Firm Shares or the Option Shares, as the case may be, to be issued by the Company pursuant to the terms of this Agreement have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable, and will not have been issued in violation of or subject to any preemptive right, co-sale right, registration right, right of first refusal or other similar right;
(viii) The Company has the corporate power and authority to enter into this Agreement and to issue, sell and deliver to the Underwriters shall have received a lock-up agreement from each Lock-Up Party, the Shares to be issued and sold by it hereunder;
(ix) This Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery by you, is a valid and binding agreement of the Company, enforceable in accordance with its terms, except insofar as indemnification provisions may be limited by applicable Lock-Up Partylaw and except as enforceability may be limited by bankruptcy, in each case substantially in the form attached as Annex IV.insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally or by general equitable principles;
(jx) The Shares are registered Registration Statement has become effective under the Exchange Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Act;
(xi) The Registration Statement and the Prospectus, and each amendment or supplement thereto (other than the financial statements (including supporting schedules) and financial data derived therefrom as to which such counsel need not express an opinion), as of the Closing Dateeffective date of the Registration Statement, complied as to form in all material respects with the Shares shall be listed requirements of the Act and admitted the applicable Rules and authorized for trading on Regulations;
(xii) The information in the Nasdaq Global Market Prospectus under the caption "Description of Capital Stock," to the extent that it constitutes matters of law or legal conclusions, has been reviewed by such counsel and satisfactory evidence is a fair summary of such action shall have been provided matters and conclusions; and the forms of certificates evidencing the Common Stock and filed as exhibits to the Underwriters. Registration Statement comply with Delaware law;
(xiii) The Company shall have taken no action designed to terminate, or likely to have description in the effect of terminating, Registration Statement and the registration Prospectus of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will charter and bylaws of the Company have received any and of statutes are accurate and fairly present the information suggesting that required to be presented by the Commission or Act and the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.applicable Rules and Regulations;
(kxiv) FINRA shall have confirmed that it has not raised any objection with respect To such counsel's knowledge, there are no agreements, contracts, leases or documents to which the Company is a party of a character required to be described or referred to in the Registration Statement or Prospectus or to be filed as an exhibit to the fairness Registration Statement which are not described or referred to therein or filed as required;
(xv) The performance of this Agreement and reasonableness the consummation of the underwriting terms and arrangements.
transactions herein contemplated (l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations other than performance of the Company.
's indemnification obligations hereunder, concerning which no opinion need be expressed) will not (ma) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 result in respect any violation of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked Company's charter or invalidated.
bylaws or (ob) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.to
Appears in 1 contract
Samples: Underwriting Agreement (Abgenix Inc)
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters to purchase and pay for the Securities Firm Shares and the Additional Shares, as provided herein herein, shall be subject to: (i) the accuracy of the representations and warranties of the Company herein contained, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) to the absence from any certificates, opinions, written statements or letters furnished pursuant to this Section 9 to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 ' counsel of any misstatement or omission, (iii) omission and to the performance by the Company satisfaction of its obligations hereunder, and (iv) each of the following additional conditions, except that with respect to the Additional Shares, references to the Closing Date shall mean the Option Closing Date:
(a) All of the representations and warranties of the Company contained herein shall be true and correct on the date hereof and on the Closing Date with the same force and effect as if made on and as of the date hereof and the Closing Date, respectively. The Company shall have performed or complied with all of the agreements herein contained and required to be performed or complied with by it at or prior to the Closing Date.
(ab) The Registration Statement shall have become effective and all necessary regulatory and listing approvals (or if a post-effective amendment is required to be filed pursuant to Rule 430A under the Securities Act Regulations, such post effective amendment shall have been received become effective) not later than 5:30 5:00 P.M., Eastern TimeNew York City time, on the date of this Agreement, Agreement or at such later time and date as shall have been consented to in writing by the UnderwritersRepresentatives. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at At or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any post-effective amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus thereof shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor shall have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in and every request for additional information on the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each part of the Closing DateCommission (including, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”)without limitation, substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants any request or comment with respect to the Company within Registration Statement, the meaning Prospectus or any document incorporated by reference therein) shall have been complied with in all material respects. No stop order suspending the sale of the Act Shares in any jurisdiction designated by the Representatives shall have been issued and all applicable Regulations, and stating, as of such date (no proceedings for that purpose shall have been commenced or be pending or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf best knowledge of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXXbe contemplated.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunder are subject to purchase and pay for the Securities as provided herein shall be subject to: (i) the accuracy of the representations and warranties on the part of the Company herein contained, as of on the date hereof and as hereof, at the time of purchase and, if applicable, at the Closing Date or the Additional Closing Dateadditional time of purchase, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, hereunder and (iv) each of to the following additional conditions.conditions precedent:
(a) The Registration Statement Company shall furnish to you at the time of purchase and, if applicable, at the additional time of purchase, an opinion and negative assurance letter of Xxxxxx & Xxxxxxx LLP, counsel for the Company, addressed to the Underwriters, and dated the time of purchase or the additional time of purchase, as the case may be, with executed copies for each of the other Underwriters, and in form and substance satisfactory to UBS, in the forms set forth in Exhibits B-1 and B-2 hereto.
(b) You shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M.from Deloitte & Touche LLP letters dated, Eastern Timerespectively, on the date of this Agreement, or at such later the date of the Prospectus Supplement, the time of purchase and, if applicable, the additional time of purchase, and date as addressed to the Underwriters (with executed copies for each of the Underwriters) in the forms satisfactory to UBS, which letters shall cover, without limitation, the various financial disclosures contained in the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any.
(c) You shall have been consented to in writing by received at the time of purchase and, if applicable, at the additional time of purchase, the favorable opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel for the Underwriters. If , dated the Company shall have elected time of purchase or the additional time of purchase, as the case may be, in form and substance reasonably satisfactory to rely upon Rule 430A under UBS.
(d) No Prospectus or amendment or supplement to the Act, Registration Statement or the Prospectus shall have been filed with to which you shall have reasonably objected in writing.
(e) The Registration Statement and any registration statement required to be filed, prior to the Commission in a timely fashion in accordance with the terms thereof and a form sale of the Shares, under the Act pursuant to Rule 462(b) shall have been filed and shall have become effective under the Act. The Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters Supplement shall have been filed with the Commission pursuant to Rule 424(b) within under the applicable Act at or before 5:30 P.M., New York City time, on the second full business day after the date of this Agreement (or such earlier time period; as may be required under the Act).
(f) Prior to and at the time of purchase, and, at or prior to if applicable, the Closing Date and the actual additional time of the Closingpurchase, (i) no stop order suspending with respect to the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no issued under the Act or proceedings for the issuance of such an order shall have been initiated under Section 8(d) or threatened; all requests 8(e) of the Commission for additional information Act; (to be included in ii) the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Underwriters Statement and all amendments thereto shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains contain an untrue statement of a material fact which, in the Underwriters’ reasonable opinion, is material, or omits omit to state a material fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Pre-Pricing Prospectuses or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(cg) The Underwriters shall have receivedCompany will, in form satisfactory at the time of purchase and, if applicable, at the additional time of purchase, deliver to the Underwriters you a certificate of its Chief Executive Officer and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Companyits Controller, dated as the time of purchase or the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as additional time of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Datepurchase, as the case may be, in the form and substance satisfactory to the Representativeattached as Exhibit C hereto.
(dh) The Underwriters You shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Datesigned Lock-Up Agreements referred to in Section 3(u) hereof, the Underwriters and each such Lock-Up Agreement shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are be in full force and effect at the time of purchase and have not been modified; (iii) the good standing additional time of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and statingpurchase, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated herebymay be.
(i) The Underwriters Company shall have received a lock-up agreement from each Lock-Up Party, duly executed by furnished to you such other documents and certificates as to the applicable Lock-Up Party, in each case substantially accuracy and completeness of any statement in the form attached Registration Statement, any Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus as Annex IVof the time of purchase and, if applicable, the additional time of purchase, as you may reasonably request.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided approved for quotation on the NASDAQ, subject only to notice of issuance at or prior to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect time of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission purchase or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness additional time of the underwriting terms and arrangements.
(l) 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 wouldpurchase, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Companycase may be.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations obligation of the Underwriters each Underwriter to purchase and pay for the Securities Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as provided herein shall be to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject to: (i) at the date hereof, the Closing Date and any Option Closing Date to the continuing accuracy and fulfillment of the representations and warranties of the Company herein containedand the Selling Stockholders, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its covenants and obligations hereunder, and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing If required by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the ActRegulations, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission SEC pursuant to Rule 424(b) of the Regulations within the applicable time periodperiod prescribed for such filing by the Regulations; and, at on or prior to the Closing Date and or any Option Closing Date, as the actual time of the Closingcase may be, no stop order or other order preventing or suspending the effectiveness of the Registration Statement or the sale of any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus Shares shall have been issued; issued under the Act or any state securities law and no proceedings for the issuance of such an order that purpose shall have been initiated or threatened; all requests shall be pending or, to the Representatives' knowledge or the knowledge of the Commission Company, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Representatives pursuant to Section 5(f) hereof; and any request on the part of the SEC for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of counsel for the Underwriters’ satisfaction.
(b) The Underwriters shall not have reasonably determinedAll corporate proceedings and other matters incident to the authorization, form and advised validity of this Agreement, the Company, that Shares and the form of the Registration Statement, the General Disclosure Package or Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be satisfactory in all material respects to counsel to the Underwriters. The Exchange shall have been consummated. The Company and the Selling Stockholders shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. The Representatives shall have received from the Underwriters' counsel, Pepper, Xxxxxxxx & Xxxxxxx LLP, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Representatives individually and as the Representatives of the several Underwriters, which opinion shall be satisfactory in all respects to the Representatives.
(c) The NASD shall have indicated that it has no objection to the underwriting arrangements pertaining to the sale of any of the Shares.
(d) The Representatives shall have received a copy of an executed Lock-up Agreement from each person listed on Schedule V hereto.
(e) The Representatives shall have received at or prior to the Closing Date from the Underwriters' counsel a memorandum or summary, in form and substance satisfactory to the Representatives, with respect to the qualification for offering and sale by the Underwriters of the Shares under the securities or Blue Sky laws of such jurisdictions designated by the Representatives pursuant to Section 5(f) hereof.
(f) On the Closing Date and any Option Closing Date, there shall have been delivered to the Representatives signed opinions of Saul, Ewing, Xxxxxx & Xxxx, counsel for the Company and the Selling Stockholders dated as of each such date and addressed to the Representatives individually and as the Representatives of the several Underwriters to the effect set forth in Exhibit B hereto or as is otherwise reasonably satisfactory to the Representatives.
(g) On the Closing Date and any Option Closing Date, there shall have been delivered to the Representatives signed opinions of Xxxxxx & Xxxxxxx, patent counsel for the Company dated as of each such date and addressed to the Representatives individually and as the Representatives of the several Underwriters to the effect set forth in Exhibit C hereto or as is otherwise reasonably satisfactory to the Representatives.
(h) At the Closing Date and any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereof thereto and the Prospectus and any amendments or supplement theretosupplements thereto shall contain all statements that are required to be stated therein in accordance with the Act and the Regulations and in all material respects shall conform to the requirements of the Act and the Regulations, and neither the Registration Statement nor any post-effective amendment thereto nor the Prospectus and any amendments or supplements thereto shall contain any Issuer Free Writing Prospectus, contains an untrue statement of a material fact which, in the Underwriters’ reasonable opinion, is material, or omits omit to state a any material fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for since the Company, dated respective dates as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and which information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included is given in the Registration Statement and any post-effective amendment thereto and the Prospectus pursuant and any amendments or supplements thereto, except as otherwise stated therein, there shall have been no material adverse change in the properties, condition (financial or otherwise), results of operations, stockholders' equity, business or management of the Company and the Subsidiaries, taken as a whole, from that set forth therein, whether or not arising in the ordinary course of business, other than as referred to in the Regulations which are not so included, and Registration Statement or Prospectus (viiiii) subsequent to since the respective dates as of which information is given in the Registration Statement and the ProspectusProspectus or any amendment or supplement thereto, there has not shall have been any Material Adverse Change no event or transaction, contract or agreement entered into by the Company or any development involving a prospective Material Adverse Changeof the Subsidiaries, whether or not arising from transactions other than in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto business and as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained set forth in the Registration Statement and Prospectus (the “CFO Certificate”)or Prospectus, providing “management comfort” with respect that has not been, but would be required to such informationbe, in form and substance reasonably satisfactory to the Representative, substantially set forth in the form attached hereto as Xxxxx XXX.
Registration Statement or Prospectus, (hiv) Subsequent to since the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the respective dates as of which information is given in the Registration Statement (exclusive of and any post-effective amendment thereof) thereto and the Prospectus (exclusive of and any supplement amendments or supplements thereto), there shall not have been no material adverse change, loss, reduction, termination or non-renewal of any change in the Ordinary Shares or long-term debt of contract to which the Company or any change Subsidiary is a party and (v) no action, suit or development involving a changeproceeding at law or in equity, whether domestic or not arising from transactions foreign, shall be pending or threatened against the Company or any Subsidiary that would be required to be set forth in the ordinary course of businessProspectus, in other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting the businessCompany or any Subsidiary before or by any federal, state or other commission, board or administrative agency, domestic or foreign, wherein an unfavorable decision, ruling or finding would materially adversely affect the properties, condition (financial or otherwise), results of operations, shareholders’ stockholders' equity, properties or prospects business of the Company, taken Company or the Subsidiaries other than as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, set forth in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated herebyProspectus.
(i) The Underwriters Representatives shall have received a lock-up agreement from each Lock-Up Partyat the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of the Company dated as of the date of the Closing Date or Option Closing Date, duly executed by as the applicable Lock-Up Partycase may be, and addressed to the Representatives, individually and as the Representatives of the several Underwriters, to the effect that (i) the signers of the certificate have read this Agreement and the representations and warranties of the Company in each this Agreement are true and correct in all material respects, as if made at and as of the Closing Date or the Option Closing Date, as the case substantially may be, and the Company has complied in all material respects with all the form attached agreements, fulfilled in all material respects all the covenants and satisfied all the conditions on its part to be performed, fulfilled or satisfied at or prior to the Closing Date or the Option Closing Date, as Annex IVthe case may be, and (ii) the signers of the certificate have examined the Registration Statement and the Prospectus and any amendments or supplements thereto and that the conditions set forth in Section 7(h) of this Agreement have been satisfied.
(j) The Shares Representatives shall have received at the Closing Date and any Option Closing Date certificates of or on behalf of the Selling Stockholders dated as of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the Representatives, individually and as the Representatives of the several Underwriters, to the effect that (i) the Selling Stockholders have read this Agreement and the representations and warranties of the Selling Stockholders in this Agreement are registered under the Exchange Act andtrue and correct in all material respects, as if made at and as of the Closing Date or Option Closing Date, as the Shares shall be listed case may be, and admitted (ii) the Selling Stockholders have examined the Registration Statement and authorized for trading on the Nasdaq Global Market Prospectus and satisfactory evidence any amendments or supplements thereto and that the conditions set forth in Section 7(h) of such action shall this Agreement have been provided satisfied with respect to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligibleSelling Stockholders.
(k) FINRA At the time this Agreement is executed and at the Closing Date and any Option Closing Date the Representatives shall have confirmed received a letter addressed to the Representatives individually and as the Representatives of the several Underwriters, and in form and substance satisfactory to the Representatives in all respects (including the non-material nature of the changes or decreases, if any, referred to in clause (iii) below) from KPMG Peat Marwick LLP dated as of the date of this Agreement, the Closing Date or the Option Closing Date, as the case may be:
(i) confirming that they are independent certified public accountants within the meaning of the Act and the Regulations and stating that the section of the Registration Statement under the caption "Experts" is correct insofar as it has not raised any objection relates to them;
(ii) stating that, in their opinion, the consolidated financial statements, schedules and notes of the Company and the Subsidiaries audited by them and included in the Registration Statement comply in form in all material respects with the applicable accounting requirements of the Act and the Regulations;
(iii) stating that, on the basis of specified procedures, which included the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information, as described in SAS No. 71, Interim Financial Information (with respect to the fairness and reasonableness latest unaudited consolidated financial statements of the underwriting terms Company), a reading of the latest available unaudited interim consolidated financial statements of the Company (with an indication of the date of the latest available unaudited interim financial statements), a reading of the minutes of the meetings of the stockholders and arrangementsthe Board of Directors of the Company and the Subsidiaries, and audit and compensation committees of such Boards, if any, and inquiries to certain officers and other employees of the Company and the Subsidiaries responsible for operational, financial and accounting matters and other specified procedures and inquiries, nothing has come to their attention that would cause them to believe that (A) the unaudited consolidated financial statements of the Company included in the Registration Statement, (1) do not comply in form in all material respects with the applicable accounting requirements of the Act and the Regulations, or (2) any material modifications should be made to such unaudited financial statements for them to be in conformity with generally accepted accounting principles; (B) at the date of the latest available unaudited interim consolidated financial statements of the Company and a specified date not more than five business days prior to the date of such letter, there was any change in the capital stock or debt of the Company or any decrease in net current assets, total assets or stockholders' equity of the Company as compared with the amounts shown in the March 31, 1997 balance sheet of the Company included in the Registration Statement, or that for the periods from April 1, 1997 to the date of the latest available unaudited financial statements of the Company and to a specified date not more than five days prior to the date of the letter, there were any decreases, as compared to the corresponding periods in the prior year, in revenues, gross profit, operating income or total or per share amounts of net earnings, except in all instances for changes, decreases or increases which the Registration Statement discloses have occurred or may occur and except for such other changes, decreases or increases which the Representatives shall in their sole discretion accept; or (C) the unaudited pro forma consolidated financial statements included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X under the Act and that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of those statements; and
(iv) stating that they have compared specific dollar amounts, numbers of shares and other numerical data and financial information set forth in the Registration Statement that have been specified by the Representatives prior to the date of this Agreement, to the extent that such information is derived from the accounting records subject to the internal control structure, policies and procedures of the Company's or the Subsidiaries' accounting systems, or has been derived directly from such accounting records by analysis or comparison or has been derived from other records and analysis maintained or prepared by the Company or the Subsidiaries with the results obtained from the application of readings, inquiries and other appropriate procedures (which procedures do not constitute an audit in accordance with generally accepted auditing standards) set forth in the letter, and found them to be in agreement.
(l) No action There 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 duly tendered to the Representatives for the respective accounts of the Underwriters certificates representing all of the Shares to be purchased by the Underwriters on the Closing Date or any Option Closing Date, prevent as the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Companycase may be.
(m) The Company At the Closing Date and any Option Closing Date, the Representatives shall have been furnished the Underwriters such additional documents, information and Underwriters’ Counsel with such other certificates, opinions or documents certificates as they may shall have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings issuance and published the filing results on January 2, 2024 in respect sale of the CSRC Filings on its websiteShares shall be legally permitted under applicable Blue Sky or state securities laws so long as such sales are made in accordance with the Preliminary Blue Sky Memorandum. All such opinions, certificates, letters and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) documents shall be in compliance with the provisions hereof only if they are satisfactory in form and substance to the Representatives and Underwriters' counsel. The Company and the Selling Stockholders shall furnish the Representatives with such conformed copies of such opinions, certificates, letters and other documents as they shall reasonably request. If any condition to the Underwriters' obligations hereunder to be fulfilled prior to or at the Closing Date or any Option Closing Date, as the case may be, is not required to apply for cybersecurity review with fulfilled, the CAC Representatives may on behalf of the several Underwriters, terminate this Agreement with respect to the Company’s proposed overseas listing pursuant Closing Date or such Option Closing Date, as applicable, or, if it so elects, waive any such conditions which have not been fulfilled or extend the time for their fulfillment. Any such termination shall be without liability of the Underwriters to the Revised Cybersecurity Review MeasuresCompany or the Selling Stockholders.
Appears in 1 contract
Samples: Underwriting Agreement (Intest Corp)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder, as to purchase and pay for the Securities as provided herein Shares to be delivered at each Time of Delivery, shall be subject to: (i) subject, in their discretion, to the accuracy of the condition that all representations and warranties and other statements of the Company herein containedare, as of the date hereof at and as of such Time of Delivery, true and correct, the Closing Date or condition that the Additional Closing Date, (ii) statements of the absence from Company and its officers made in any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel certificate delivered pursuant to this Section 7 Agreement shall be, at and as of any misstatement or omissionsuch Time of Delivery, (iii) true and correct, the performance by condition that the Company shall have performed all of its obligations hereunderhereunder theretofore to be performed, and (iv) each of the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time periodperiod prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or Statement, any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure PackagePreliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings proceeding for the issuance of such an order that purpose shall have been initiated or threatenedthreatened by the Commission; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; and all requests for additional information on the part of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ Canaccord Xxxxx Inc.’s reasonable satisfaction.;
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law Xxxxxxx Procter LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinionUnderwriters such opinion or opinions, addressed dated such Time of Delivery, with respect to this Agreement, the Registration Statement, the Pricing Disclosure Package, the Prospectus and other related matters as the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Officesrequest;
(c) Lowndes, PRC Drosdick, Doster, Xxxxxx & Xxxx, P.A., counsel to the UnderwritersCompany, shall have furnished to the Representative its Underwriters their written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may besuch Time of Delivery, in form and substance reasonably satisfactory to the Representative.Underwriters, with respect to the matters set forth in Annex I hereto;
(d) The Underwriters On the date hereof and also at each Time of Delivery, Cross, Xxxxxxxxx & Xxxxx, LLP shall have received certificates furnished to the Underwriters a letter or letters, dated the respective date of delivery thereof, in form and substance reasonably satisfactory to the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing DateUnderwriters, to the effect that: set forth in Annex II hereto;
(i) Neither the conditions set forth in subsection (a) Company nor any of this Section 7 its subsidiaries shall have been satisfied, (ii) as sustained since the date of the date hereof and as of latest audited financial statements included in the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained Pricing Prospectus any material loss or interference with its businessesbusiness from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated decree, otherwise than as set forth or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included contemplated in the Registration Statement and the Prospectus pursuant to the Regulations which are not so includedPricing Prospectus, and (viiii) subsequent to since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares capital stock or long-term debt of the Company or any change of its subsidiaries except (A) the sale of the Shares to be sold by the Company hereunder; (B) issuances of Common Stock pursuant to the exercise of options or development involving a changewarrants outstanding on the date hereof; and (C) the issuance of Common Stock, whether or not arising from transactions convertible promissory notes and warrants to purchase Common Stock in exchange for shares of Series A preferred stock of the Company and the issuance of shares of Common Stock upon conversion of such convertible promissory notes and exercise of such warrants, in each case pursuant to contractual obligations existing on the date hereof and disclosed in the ordinary course of Pricing Prospectus and Prospectus or any material adverse change in the general affairs, business, in the businessassets, condition (management, financial position, stockholders’ equity or otherwise), results of operations, shareholders’ equity, properties or prospects operations of the Company, Company and its subsidiaries taken as a whole, including but not limited to otherwise than as set forth or contemplated in the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamityPricing Prospectus, the effect of which, in any such case described abovein clause (i) or (ii), is, is in the reasonable sole judgment of the Underwriters, Canaccord Xxxxx Inc. so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(f) On or after the date hereof there shall not have occurred any of the following: (i) additional material governmental restrictions, not in force and effect on the date hereof, shall have been imposed upon trading in securities generally or minimum or maximum prices shall have been generally established on the New York Stock Exchange, The Nasdaq Capital Market, the American Stock Exchange or in the over-the-counter market by FINRA, or trading in securities generally shall have been suspended on the New York Stock Exchange, The Nasdaq Capital Market, the American Stock Exchange or in the over the counter market by FINRA, or a general banking moratorium shall have been established by federal or New York authorities, (ii) a suspension or material limitation in trading in securities generally on The Nasdaq Capital Market, (iii) a suspension or material limitation in trading in the Company’s securities on The Nasdaq Capital Market, (iv) an outbreak of major hostilities or other national or international calamity or any substantial change in political, financial or economic conditions shall have occurred or shall have accelerated or escalated to such an extent, as, in the sole judgment of Canaccord Xxxxx Inc., to affect materially and adversely the marketability of the Shares or (v) there shall be any action, suit or proceeding pending or threatened, or there shall have been any development or prospective development involving particularly the business or properties or securities of the Company or any of its subsidiaries or the transactions contemplated by this Agreement, which, in the sole judgment of Canaccord Xxxxx Inc., has materially and adversely affected the Company’s business or earnings and makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(g) The Shares to be sold at such Time of Delivery shall have been listed, subject to notice of issuance, on The Nasdaq Capital Market;
(h) Each director and executive officer of the Company, in their capacities as such, shall have executed and delivered to the Underwriters agreements in which such holder undertakes, for 90 days after the date of the Prospectus, subject to certain exceptions stated therein, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of Securities any shares of Common Stock, or Offering as contemplated hereby.any securities convertible into or exchangeable for, or any rights to purchase or acquire, shares of Common Stock, without the prior written consent of Canaccord Xxxxx Inc.; notwithstanding the foregoing, if (1) during the last 17 days of the 90-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day period, then, subject to certain exceptions stated therein, the restrictions imposed above shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event;
(i) The Underwriters shall have received a lock-up agreement from on and as of each Lock-Up PartyTime of Delivery, duly executed by as the applicable Lock-Up Partycase may be, satisfactory evidence of the good standing of the Company and its subsidiaries in their respective jurisdictions of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case substantially in writing or any standard form of telecommunication from the form attached as Annex IV.appropriate governmental authorities of such jurisdictions;
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 each Time of Delivery, as the Closing Datecase may be, prevent the issuance or sale of the SecuritiesShares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of each Time of Delivery, as the Closing Datecase may be, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.Shares; and
(mk) The Company shall have furnished or caused to be furnished to the Underwriters at such Time of Delivery certificates of officers of the Company, in their capacities as such, satisfactory to Canaccord Xxxxx Inc., as to the accuracy of the representations and Underwriters’ Counsel with warranties of the Company herein, at and as of such Time of Delivery, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Time of Delivery, and as to such other certificatesmatters as the Underwriters may reasonably request, opinions or documents as they may have reasonably requested.
(n) The CSRC and the Company shall have concluded furnished or caused to be furnished certificates as to the CSRC Filings matters set forth in subsections (a) and published the filing results on January 2, 2024 in respect (g) of the CSRC Filings on its websitethis Section, and as to such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidatedother matters as Canaccord Xxxxx Inc. may reasonably request.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Securities Shares as provided herein shall be subject to: (i) the accuracy of the representations and warranties of the Company herein contained, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, omission (iii) the performance by the Company of its obligations hereunder, and (iv) each of the following additional conditions. For purposes of this Section 7, the terms “Closing Date” and “Closing” shall refer to the Closing Date for the Shares and each of the foregoing and following conditions must be satisfied as of each Closing.
(a) The Registration Statement shall have become effective and all necessary regulatory and or listing approvals shall have been received not later than 5:30 P.M., Eastern TimeNew York time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the UnderwritersRepresentatives. If the Company shall have elected to rely upon Rule 430A under the Securities Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof hereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and or the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests any request of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the UnderwritersRepresentatives’ satisfaction; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Underwriters Representatives shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the UnderwritersRepresentatives’ reasonable opinion, is material, or omits to state a fact which, in the UnderwritersRepresentatives’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters Representatives shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of received (i) legal opinions from Xxxxxx the favorable written opinion of Sichenzia Xxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK Xxxxxxx LLP, U.S. United States legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and the favorable written opinion Xxxxxx Westwood & Riegels, British Virgin Islands counsel for the Company in the form attached hereto as Annex II, each dated as of the Closing Date addressed to the Representatives of the Underwriters and (ii) the favorable written opinion of Deheng Law Offices, legal counsel for the Company with respect to the laws of the PRC dated as of the Closing Date, addressed to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as Representatives of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificateIII.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 1 contract
Samples: Underwriting Agreement (Shengkai Innovations, Inc.)
Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters hereunder are subject to purchase the accuracy, when made and pay for on the Securities as provided herein shall be subject to: (i) the accuracy Delivery Date, of the representations and warranties of the Company herein containedPartnership Parties contained herein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company Partnership Parties of its their respective obligations hereunder, and (iv) to each of the following additional terms and conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been timely filed with the Commission in a timely fashion in accordance with Section 5(a)(i) hereof; the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters Issuers shall have been filed complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the Commission pursuant to Rule 424(b) within the applicable time perioddate hereof; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or any amendment thereof, nor suspending or preventing the use of the General Disclosure Packageany Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings proceeding for the issuance of such an order purpose shall have been initiated or threatenedthreatened by the Commission; all requests any request of the Commission for inclusion of additional information (to be included in the Registration Statement, the General Disclosure Package, the any Preliminary Prospectus, any Issuer Free Writing or the Prospectus or otherwise) otherwise shall have been complied with with; and the Commission shall not have notified the Issuers of any objection to the Underwriters’ satisfactionuse of the form of the Registration Statement.
(b) The Underwriters No Underwriter shall not have reasonably determined, discovered and advised disclosed to the Company, Issuers on or prior to the Delivery Date that the Registration StatementStatement as of the Effective Date, any Preliminary Prospectus or the General Prospectus as of its respective date and on the Delivery Date, or the Pricing Disclosure Package or as of the ProspectusApplicable Time, or in each case including any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of a fact whichthat, in the reasonable opinion of Xxxxxxx Xxxxx LLP, counsel for the Underwriters’ reasonable opinion, is material, material or omits to state a fact whichthat, in the Underwriters’ reasonable opinionopinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleadingmisleading (in the case of any Preliminary Prospectus, the Prospectus or the Pricing Disclosure Package, in the light of the circumstances under which such statements were made).
(c) The Underwriters shall have receivedAll corporate, in form satisfactory partnership and limited liability company proceedings and other legal matters incident to the Underwriters authorization, form and Underwriters’ counsel validity of (i) the Debt Documents, the Registration Statement, any Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel matters relating to the Company dated as of Debt Documents and the Closing Date and addressed transactions contemplated thereby, shall be reasonably satisfactory in all material respects to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion Partnership Parties shall have been provided furnished to the Underwriters with consent from such counsel. VCL Law LLP, counsel all documents and information that they may reasonably request to the Underwriters, enable them to pass upon such matters.
(d) Xxxxxx & Xxxxxx L.L.P. shall have furnished to the Representative Representatives its (i) written opinion, as counsel to the Partnership Parties, addressed to the Underwriters and dated the Closing Date or any Additional Closing Delivery Date, in form and substance reasonably satisfactory to the Representatives, with respect to the matters set forth in Exhibit A to this Agreement.
(e) The General Counsel of BGL shall have furnished to the Representatives his written opinion, as counsel to the case may be, and (ii) negative assurance letterIssuers, addressed to the Underwriters and dated the Closing Date or any Additional Closing Delivery Date, in form and substance reasonably satisfactory to the Representatives, with respect to the matters set forth in Exhibit B to this Agreement.
(f) Xxxxxxx Xxxxx LLP shall have furnished to the Representatives its written opinion or opinions, as counsel for the Underwriters, addressed to the Underwriters and dated the Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus, the Pricing Disclosure Package and such other related matters as the case Representatives may bereasonably require, and the Company Partnership Parties shall have furnished to such counsel such documents and information as such counsel may they reasonably request to enable for the purpose of enabling them to pass on upon such matters. XxxXxxxxx Law Offices.
(g) Promptly after the execution of this Agreement, PRC counsel the Representatives shall have received from Deloitte & Touche LLP a letter (the “initial letter”), in form and substance satisfactory to the Underwriters, shall have furnished to the Representative its written opinionRepresentatives, addressed to the Underwriters and dated the Closing Date or any Additional Closing Datedate hereof (i) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of the case may bedate hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(h) The Representatives shall have received from Deloitte & Touche LLP a letter (the “bring-down letter”), in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such dateRepresentatives, addressed to the Underwriters and in form and substance satisfactory to dated the Underwriters and Underwriters’ Counsel, Delivery Date (i) confirming that they are an independent certified registered public accountants with respect to the Company accounting firm within the meaning of the Securities Act and all are in compliance with the applicable Regulationsrequirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of such 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 five (5) three days prior to such datethe date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(gi) On the date of this Agreement and on the Closing Date, the Company BGL shall have furnished to the Representative, Representatives a certificate on behalf of the Companycertificate, dated the respective dates of delivery thereof and addressed to the UnderwritersDelivery Date, of its Chairman of the Board, its Chief Executive Officer, its President or any of its Vice Presidents and its Chief Financial Officer stating that:
(i) The representations, warranties and agreements of the Partnership Parties in Section 1 hereof are true and correct on and as of the Delivery Date, and the Partnership Parties have complied with respect all their agreements contained herein and satisfied all the conditions on their part to certain financial date contained in be performed or satisfied hereunder at or prior to the Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings for that purpose have been instituted or, to the knowledge of such officers, threatened; and the Commission has not notified the Issuers of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package and, in their opinion, (A) (1) the “CFO Certificate”Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of the Registration Statement) or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in the case of the Pricing Disclosure Package and the Prospectus), providing “management comfort” with respect to such informationand (B) since the Effective Date, no event has occurred that should have been set forth in form and substance reasonably satisfactory a supplement or amendment to the RepresentativeRegistration Statement, substantially in the form attached hereto as Xxxxx XXXmost recent Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
(hj) Subsequent to the execution and delivery of this Agreement and prior Agreement, (i) no Partnership Entity shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, any labor dispute or any court or governmental action, order or decree, (ii) no Partnership Entity shall have become a party to or the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive subject of any amendment thereoflitigation or court or government action, investigation, order or decree that is adverse to any Partnership Entity and (iii) and the Prospectus (exclusive of any supplement thereto), there shall not have been any adverse change in the Ordinary Shares partners’ capital, members’ equity or short- or long-term debt of the Company any Partnership Entity or any change adverse change, or any development involving a prospective adverse change, whether in or not arising from transactions in affecting the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholderssecurityholders’ equity, properties properties, management, business or prospects of the Companyany Partnership Entity, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, in each case the effect of which, which in any such case described above, is, in the reasonable judgment of the UnderwritersRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale public offering or the delivery of the Securities or Offering as on the terms and in the manner contemplated herebyherein and in the Prospectus.
(k) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the debt securities of any Partnership Entity by any “nationally recognized statistical rating organization” (as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules and Regulations) and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any debt securities of any Partnership Entity.
(l) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the NYSE shall have been suspended or materially limited, the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) trading in any securities of any Partnership Entity on any exchange or in the over-the-counter market shall have been suspended or materially limited, the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (iii) a banking moratorium shall have been declared by federal or New York or Texas state authorities, (iv) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (v) a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities or any other calamity or crisis after the date hereof, or the effect of international conditions on the financial markets in the United States, that in any such case would make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities on the terms and in the manner contemplated herein and in the Prospectus.
(m) The Underwriters shall have received a lock-up agreement from each Lock-Up Partythe Partnership Parties such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request. All opinions, duly executed by the applicable Lock-Up Partyletters, evidence and certificates mentioned above or elsewhere in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares this Agreement shall be listed deemed to be in compliance with the provisions hereof only if they are in form and admitted and authorized substance reasonably satisfactory to counsel for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 1 contract
Samples: Underwriting Agreement (Boardwalk Pipeline Partners, LP)
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters to purchase and pay for the Securities Shares as provided herein shall be subject to: (i) to the accuracy accuracy, as of the date hereof and the Closing Date and any later date on which Option Shares are to be purchased, as the case may be, of the representations and warranties of the Company herein containedand the Principal Stockholder herein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, hereunder and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 2:00 P.M., Eastern TimeSan Francisco time, on the date of this Agreement, Agreement or at such later time and date as shall have been be consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof you; and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus thereof shall have been issued; issued and no proceedings for the issuance of such an order that purpose shall have been initiated or, to the knowledge of the Company or threatened; all requests any Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, Statement or the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of Underwriters’ satisfaction' Counsel.
(b) The Underwriters shall not have reasonably determined, All corporate proceedings and advised the Company, that the Registration Statementother legal matters in connection with this Agreement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement form of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not and the registration, authorization, issue, sale and delivery of the Shares, shall have been any Material Adverse Change or any development involving a prospective Material Adverse Changereasonably satisfactory to Underwriters' Counsel, whether or not arising from transactions and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in the ordinary course of businessthis Section.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(hc) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date orDate, if earlieror any later date on which Option Shares are to be purchased, as the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto)case may be, there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operationsearnings, shareholders’ equity, properties operations or prospects business of the CompanyCompany and its subsidiaries considered as one enterprise from that set forth in the Registration Statement or Prospectus, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described aboveyour sole judgment, is, in the reasonable judgment of the Underwriters, so is material and adverse as to make it and that makes it, in your sole judgment, impracticable or inadvisable to proceed with the sale initial public offering of Securities or Offering the Shares as contemplated hereby.by the Prospectus; and
(id) The Underwriters You shall have received a lockon the Closing Date and on any later date on which Option Shares are purchased, as the case may be, the following opinion of the in-up agreement from house counsel for the Company and Penford, Edmuxx X. Xxxxxxxx, Xx., xxted the Closing Date or such later date on which Option Shares are purchased, addressed to the Underwriters and with reproduced copies or signed counterparts thereof for each Lock-Up Partyof the Underwriters, duly executed by to the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.effect that:
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(mii) The Company shall have furnished has the Underwriters corporate power and Underwriters’ Counsel with such other certificatesauthority to own, opinions or documents lease and operate its properties and to conduct its business as they may have reasonably requested.described in the Prospectus. Penford has the corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted;
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(oiii) The Company is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction, if any, in which the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified or be in good standing would not required have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and its subsidiaries considered as one enterprise. To such counsel's knowledge, the Company does not own or control, directly or indirectly, any corporation, association or other entity, other than Mendxxx XX Ltd., Edwaxx Xxxxxxx Xxxland OY and Edwaxx Xxxxxxx XxxH;
(iv) The Company has the corporate power and authority to apply for cybersecurity review with the CAC with respect enter into this Agreement and to issue, sell and deliver to the Company’s proposed overseas listing Underwriters the Shares to be issued and sold by it hereunder;
(v) Penford has the corporate power and authority to enter into this Agreement;
(vi) The issued and outstanding shares of capital stock of the Company have been duly and validly issued and are fully paid and nonassessable, and, to such counsel's knowledge, have not been issued in violation of or subject to any preemptive right, co-sale right, registration right, right of first refusal or other similar right, except as described in the Registration Statement and Prospectus;
(vii) To such counsel's knowledge, the Company owns all of the outstanding capital stock of its Significant Subsidiaries (as such term is defined in such opinion) free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest;
(viii) The Firm Shares or the Option Shares, as the case may be, to be issued by the Company pursuant to the Revised Cybersecurity Review Measures.terms of this Agreement have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable, and, to such counsel's knowledge, will not have been issued in violation of or subject to any preemptive right, co-sale right, registration right, right of first refusal or other similar right;
(x) Each of the Intercompany Agreements has been duly authorized by all necessary corporate action on the part of Penford and the Company, as the case may be, and has been duly executed and delivered by Penford and the Company, as the case may be, and is a valid and binding agreement of Penford and the Company, as the case may be, enforceable in accordance with its terms, except as rights to indemnification thereunder may be limited by applicable law and except as to the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally or by general equitable principles;
Appears in 1 contract
Samples: Underwriting Agreement (Penwest Pharmaceuticals Co)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Securities Firm Shares and the Additional Shares, as provided herein herein, shall be subject to: (i) to the accuracy of the representations and warranties of the Company herein contained, as of the date hereof and as of the Closing Date or (for purposes of this Section 6, “Closing Date” shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, (ii) if different, for the Additional Shares), to the absence from any certificates, opinions, written statements or letters furnished to the Underwriters Lead Managers or to Underwriters’ Counsel pursuant to this Section 7 6 of any misstatement or omission, (iii) to the performance by the Company of its obligations hereunder, and (iv) to each of the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A or Rule 434 under the Securities Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof Section 4(a) hereof and a form of the Prospectus containing information relating to the description of the Securities Shares and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the ClosingDate, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any post-effective amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus thereof shall have been issued; issued and no proceedings for the issuance of such an order therefor shall have been initiated or threatened; all requests of the Commission for additional information (to be included in the Registration Statementor, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfactionCompany’s knowledge, threatened by the Commission.
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of At the Closing Date and addressed to you shall have received the Underwriterswritten opinion of Xxxxx Day, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated the Closing Date, addressed to the Underwriters in substantially the form attached hereto as of Annex I.
(c) At the Closing Date and you shall have received the written opinion of Looney & Xxxxxxxx LLP, special Massachusetts counsel for the Company, dated the Closing Date, addressed to the Underwriters in substantially the form attached hereto as Annex II.
(d) All proceedings taken in connection with the sale of the Firm Shares and the Additional Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Lead Managers and to Underwriters’ Counsel, and (iii) legal opinions the Underwriters shall have received from Xxx Xxx Law Offices, PRC legal counsel to the CompanyUnderwriters’ Counsel a written opinion, dated as of the Closing Date. Each , with respect to the issuance and sale of the opinion shall provide assurance to parties that Shares, the legal aspects of Registration Statement and the transaction have been properly examined Prospectus and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, other related matters as the case Lead Managers may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may berequire, and the Company shall have furnished to such counsel Underwriters’ Counsel such documents and information as such counsel they may reasonably request to enable for the purpose of enabling them to pass on upon such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated .
(e) At the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters you shall have received certificates a certificate of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”)Company, substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: that (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 1 hereof are accurate, (iiiii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied withwith in all material respects, (iviii) the Company has and the Subsidiaries have not sustained any material loss or interference with its businessestheir respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, that could reasonably be expected to have a Material Adverse Effect, (viv) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereof has been issued and no proceedings therefor have been initiated or or, to the Company’s knowledge, threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, Commission and (viiv) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described or contemplated in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse ChangeEffect, whether or not arising from transactions in the ordinary course of business.
, in or affecting (ex) At each the business, condition (financial or otherwise), results of the Closing Dateoperations, the Underwriters shall have received a certificate stockholders’ equity or properties of the Company signed by and the Secretary Subsidiaries, taken as a whole; or (y) the long-term debt or capital stock of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each or any of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificateits Subsidiaries.
(f) On At the time this Agreement is executed and at the Closing Date, you shall have received a comfort letter, from E&Y, independent public accountants for the Company, dated, respectively, as of the date of this Agreement and on as of the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, Date addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On At the time this Agreement is executed and at the Closing Date, you shall have received a comfort letter, from GT, independent public accountants for XxXX, dated, respectively, as of the date of this Agreement and on as of the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and Date addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement Underwriters and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXXUnderwriters and Underwriters’ Counsel.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date orAgreement, if earlier, the dates except as of which information is given described or contemplated in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto)Prospectus, there shall not have been any change in the Ordinary Shares capital stock or long-term debt of the Company or any Subsidiary or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholdersstockholders’ equity, equity or properties or prospects of the CompanyCompany and the Subsidiaries, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism accident or other calamitycalamity at any of the properties owned or leased by the Company or any of its Subsidiaries, the effect of which, in any such case described above, is, in the reasonable judgment of the UnderwritersLead Managers, so material and adverse as to make it impracticable or inadvisable to proceed with the sale Offering on the terms and in the manner contemplated in the Prospectus (exclusive of Securities or Offering as contemplated herebyany supplement).
(i) The Underwriters You shall have received a duly executed lock-up agreement from each Lock-Up Party, duly executed by person who is a director or officer of the applicable Lock-Up PartyCompany and is listed on Schedule II hereto, in each case substantially in the form attached hereto as Annex IVIII.
(j) The At the respective Closing Dates, the Firm Shares are registered under and the Exchange Act andAdditional Shares, as of applicable, shall have been approved for quotation on the NASDAQ.
(k) At the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or other documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect . If any of the CSRC Filings on its websiteconditions specified in this Section 6 shall not have been fulfilled when and as required by this Agreement, and such notice or if any of acceptance and/or filing results published not having otherwise been rejectedthe certificates, withdrawnopinions, revoked written statements or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect letters furnished to the Company’s proposed overseas listing Lead Manager or to Underwriters’ Counsel pursuant to this Section 6 shall not be reasonably satisfactory in form and substance to the Revised Cybersecurity Review MeasuresLead Managers and to Underwriters’ Counsel, all obligations of the Underwriters hereunder may be cancelled by the Lead Managers at, or at any time prior to, the Closing Date and the obligations of the Underwriters to purchase the Additional Shares may be cancelled by the Lead Managers at, or at any time prior to, the Additional Closing Date. Notice of such cancellation shall be given to the Company in writing or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters of any Designated Shares under the Pricing Agreement relating to purchase and pay for such Designated Shares will be subject, in the Securities as provided herein shall be subject to: (i) Representatives’ discretion, to the accuracy of the condition that all representations and warranties and other statements of the Company herein contained, as of included or incorporated by reference in the date hereof Pricing Agreement relating to such Designated Shares are true and correct at and as of any Time of Delivery for such Designated Shares and the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished condition that prior to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 such Time of any misstatement or omission, (iii) the performance by Delivery the Company will have performed all of its their obligations hereunderhereunder theretofore to be performed, and (iv) each of the following additional conditions.:
(ai) The Registration Statement shall have become effective Preliminary Prospectus and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating relation to the description of the Securities and the method of distribution and similar matters applicable Designated Shares shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time periodperiod prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; and, at or prior (ii) each Issuer Free Writing Prospectus relating to the Closing Date and Designated Shares (including, without limitation, an Issuer Free Writing Prospectus setting forth the actual time final terms of the Closing, Designated Shares) shall have been filed with the Commission pursuant to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(a) hereof; (iii) no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus thereof shall have been issued; issued and no proceedings proceeding for that purpose or pursuant to Section 8A of the issuance of such an order Securities Act shall have been initiated or threatenedthreatened by the Commission; and (iv) all requests for additional information on the part of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.reasonable satisfaction of the Representatives;
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall will have furnished to the Representative its (i) written opinionRepresentatives such opinion or opinions, addressed dated each Time of Delivery, with respect to the Underwriters good standing status of the Company, the Designated Shares, the Registration Statement, the Prospectus, the Time of Sale Information and dated the Closing Date or any Additional Closing Date, such other related matters as the case Representatives may bereasonably request, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company such counsel shall have furnished to such counsel received such documents and information as such counsel they may reasonably request to enable them to pass on upon such matters. XxxXxxxxx Law Offices;
(c) Xxxxxx Xxxxxxxx LLP, PRC counsel to the UnderwritersCompany, shall have furnished to the Representative its Representatives their written opinionopinion or opinions, addressed dated the Time of Delivery, in form and substance reasonably satisfactory to the Underwriters Representatives, substantially to the effect of Annex II hereto;
(d) On the date of the applicable Pricing Agreement for such Designated Shares and at each Time of Delivery for such Designated Shares, Pricewaterhouse Coopers LLP, which has audited the financial statements of the Company and its consolidated subsidiaries and of the Operating Partnership and its consolidated subsidiaries, included or incorporated by reference in the Registration Statement, shall have furnished to the Representatives letters, dated the Closing Date or any Additional Closing Date, as the case may berespective dates of delivery, in form and substance satisfactory to the Representative.Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus;
(de) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) The Company and its subsidiaries (including, without limitation, the conditions set forth in subsection (a) of this Section 7 Operating Partnership), taken as a whole, have been satisfied, (ii) as not sustained since the date of the date hereof latest audited financial statements included or incorporated by reference in the Preliminary Prospectus and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained Prospectus any material loss or interference with its businessesbusiness from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commissiondecree, (vi) there are no pro forma or except as adjusted financial statements that are required to be included set forth in the Registration Statement Time of Sale Information and the Prospectus pursuant to the Regulations which are not so included, and (viiii) subsequent to since the respective dates as of which information is given in the Registration Statement Statement, the Preliminary Prospectus and the ProspectusProspectus (without giving effect to any amendment thereof or supplement thereto subsequent to the date of the Pricing Agreement relating to the Designated Shares), except as set forth in Schedule IV to the applicable Pricing Agreement, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions change in the beneficial interests of the Company (other than (x) issuances of beneficial interests (A) pursuant to equity-based awards granted in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate business to trustees or employees of the Company signed by or the Secretary Operating Partnership, (B) upon exercise of options and upon conversion or redemption of convertible or redeemable securities, in each case which were outstanding as of the Company (date of the “Secretary’s Certificate”), substantially latest audited financial statements included or incorporated by reference in the form attached hereto as Annex II Time of Sale Information and dated the Closing DateProspectus, certifying: and (iC) that each upon the exchange of Operating Partnership interests for beneficial interests in the Charter Company and Bylaws is true and complete, has not been modified and is in full force and effect; (iiy) that the resolutions repurchases of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of beneficial interests under the Company; and (iv’s share repurchase program) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectuspartnership interests in the Operating Partnership or the capital stock, as partnership, membership or beneficial interests of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, any of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”)consolidated subsidiaries, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been or any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a changeand its consolidated subsidiaries (including, whether or not arising from transactions in without limitation, the ordinary course of business, in the business, condition (financial or otherwiseOperating Partnership), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, management, results of operations, financial condition or prospects of the Company and its subsidiaries (including, without limitation, the Operating Partnership), taken as a whole, except as set forth in the Time of Sale Information and the Prospectus (without giving effect to any amendment thereof or supplement thereto subsequent to the occurrence date of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamitythe Pricing Agreement relating to the Designated Shares), the effect of which, in any such case described abovein clause (i) or (ii), is, is in the reasonable judgment of the Underwriters, Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Shares on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus;
(f) On or after the date of the Pricing Agreement relating to the Designated Shares, (i) no downgrading shall have occurred in the rating accorded the Operating Partnership’s debt securities or the Company debt securities or, if applicable, preferred shares of beneficial interest by any “nationally recognized statistical rating organization” (as the term is defined in Section 3(a)(62) of the Exchange Act) and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Operating Partnership’s debt securities or the Company’s debt securities or preferred shares;
(g) On or after the date of the Pricing Agreement relating to the Designated Shares, there shall not have occurred any of the following: (i) trading generally will have been suspended or materially limited on the New York Stock Exchange or the over-the-counter market; (ii) trading of any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities will have been declared by federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services; or (iv) there will have occurred any outbreak or escalation of hostilities or acts of terrorism involving the United States or declaration of national emergency or war by the United States or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment of the Representatives, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or the delivery of Securities the Firm Shares or Offering as Optional Shares or both on the terms and in the manner contemplated hereby.by this Agreement, the Time of Sale Information and the Prospectus;
(h) The Preferred Shares and Conversion Shares at each Time of Delivery shall have been duly listed, subject to notice of issuance on the New York Stock Exchange;
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished or caused to be furnished to the Underwriters Representatives at the Time of Delivery for the Designated Shares a certificate or certificates of officers of the Company in such form and Underwriters’ Counsel with executed by such officers of the Company as will be satisfactory to the Representatives, as to the accuracy of the representations and warranties of the Company herein at and as of such Time of Delivery, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth in Sections 8(a), 8(e), 8(f) and 8(h) and as to such other certificates, opinions or documents matters as they the Representatives may have reasonably requested.request; and
(nj) The CSRC Articles Supplementary shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review filed with the CAC with respect to State Department of Assessments and Taxation of Maryland and become effective under the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review MeasuresMaryland General Corporation Law.
Appears in 1 contract
Samples: Underwriting Agreement (Brandywine Operating Partnership, L.P.)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Securities Firm Shares and Firm Warrants or any Option Securities, as the case may be, as provided herein shall be subject to: (i) the accuracy of the representations and warranties of the Company herein contained, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters Representatives or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and (iv) each of the following additional conditions. For purposes of this Section 7, the terms “Closing Date” and “Closing” shall refer to the Closing Date for the Firm Shares and Firm Warrants or Option Securities, as the case may be, and each of the foregoing and following conditions must be satisfied as of each Closing.
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M.5:00 p.m., Eastern TimeNew York City time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the UnderwritersRepresentatives. If the Company shall have elected to rely upon Rule 430A under the Securities Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the UnderwritersRepresentatives’ satisfaction; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Underwriters Representatives shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the UnderwritersRepresentatives’ reasonable opinion, is material, or omits to state a fact which, in the UnderwritersRepresentatives’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters Representatives shall have receivedreceived the favorable written opinions, in each case in form satisfactory to the Underwriters Representatives and Underwriters’ counsel (and in the case of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and ), including customary negative assurance letter from DLA Piper UK language), of (i) Xxxxxx Xxxxxxx & Xxxxx LLP, U.S. the securities legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters; (ii) Fish & Xxxxxxxxxx LLP, and (iii) legal opinions from Xxx Xxx Law Offices, PRC patent legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined Date and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel addressed to the Underwriters; and (iii) Xxxxxxxxxxxx O’Xxxxxx Xxxxxxx Kindness PLLC, shall have furnished to trademark legal counsel for the Representative its (i) written opinionCompany, dated as of the Closing Date and addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters Representatives shall have received certificates of each of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”)Company, substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Rules and Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters Representatives shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) PMB Xxxxx Xxxxxxx as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters Representatives and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Securities Act and all applicable Regulationsrules and regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(hf) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares capital stock or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the UnderwritersRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(ig) The Underwriters Representatives shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IVII.
(jh) The Shares Common Stock and the Warrants are registered under the Exchange Act and, as of the Closing Date, the Shares Common Stock and the Warrants shall be listed and admitted and authorized for trading on the Nasdaq Global NASDAQ Capital Market and satisfactory evidence of such action shall have been provided to the UnderwritersRepresentatives. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares Common Stock or the Warrants under the Exchange Act or delisting or suspending the Shares Common Stock or the Warrants from trading on the Nasdaq Global NASDAQ Capital Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global NASDAQ Capital Market is contemplating terminating such registration or listing. The Firm Shares Securities shall be DTC eligible.
(ki) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements. In addition, the Company shall, if requested by the Representatives, make or authorize the Underwriters’ Counsel to make on the Company’s behalf an Issuer Filing with the FINRA Corporate Financing Department pursuant to FINRA Rule 5110 with respect to the Registration Statement and pay all filing fees required in connection therewith.
(lj) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(mk) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(ol) The Company is shall have entered into a warrant agreement (the “Warrant Agreement”) with Nevada Agency and Trust Company, as warrant agent for the Warrants. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required to apply for cybersecurity review with by this Agreement, or if any of the CAC with respect certificates, opinions, written statements or letters furnished to the Company’s proposed overseas listing Representatives or to Underwriters’ Counsel pursuant to this Section 7 shall not be reasonably satisfactory in form and substance to the Revised Cybersecurity Review MeasuresRepresentatives and to Underwriters’ Counsel, all obligations of the Underwriters hereunder may be cancelled by the Representatives 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 shall be confirmed promptly thereafter in writing.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the --------------------------------------- Underwriters to purchase and pay for the Securities Firm Shares and the Additional Shares, as provided herein herein, shall be subject to: to (i) the accuracy in all material respects of the representations and warranties of the Company herein contained, as of the date hereof and as of the Closing Date or (for purposes of this Section 6 "Closing Date" shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares), (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters you or to Underwriters’ ' Counsel pursuant to this Section 7 6 of any material misstatement or material omission, (iii) the material performance by the Company of its covenants and other obligations hereunder, and (iv) each of the following additional conditions.:
(a) The Registration Statement Statement, including any Rule 462(b) Registration Statement, shall have become effective and all necessary regulatory and listing approvals of the Nasdaq National Market shall have been received not later than 5:30 P.M., Eastern TimeNew York time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If you; if the Company shall have elected to rely upon Rule 430A under or Rule 434 of the ActRegulations, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof Section 4(a) hereof; and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the ClosingDate, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any post-effective amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus thereof shall have been issued; issued and no proceedings for the issuance of such an order therefor shall have been initiated or threatened; all requests threatened by the Commission or any state securities authority and any request on the part of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Underwriters’ satisfaction.
(b) The At the Closing Date, you shall have received an opinion of Company Counsel, dated the Closing Date, addressed to the Underwriters shall not have and in form and substance reasonably determinedsatisfactory to Underwriters' Counsel, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, substantially in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleadingform of Exhibit A hereto.
(c) The All proceedings taken in connection with the sale of the Firm Shares and the Additional Shares as herein contemplated shall be reasonably satisfactory in form and substance to you and to Underwriters' Counsel, and the Underwriters shall have received, in form satisfactory to the Underwriters and received from said Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company' Counsel a favorable opinion, dated as of the Closing Date in customary form and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated covering such matters as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case you may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may bereasonably request, and the Company shall have furnished to such counsel Underwriters' Counsel such documents and information as such counsel may they reasonably request to enable for the purpose of enabling them to pass on upon such matters. XxxXxxxxx Law Offices, PRC counsel to the In giving such opinion Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date' Counsel may rely, as to all matters governed by the case may belaws of jurisdictions other than the law of the State of California, in form the Federal law of the United States and substance the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Representative. Underwriters' Counsel may also state that, insofar as 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) The Underwriters At the Closing Date you shall have received certificates a certificate of each of the Chairman of the Board of Directors, the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”)Company, substantially in the form attached hereto as Annex I and dated as of the Closing Date, Date to the effect that: that (i) the conditions set forth in subsection (a) of this Section 7 6 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 1 hereof are accurateaccurate in all material respects, (iii) as of the Closing Date, all agreements, conditions and the obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied within all material respects, and (iv) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, the Company has and its subsidiaries have not sustained any material loss or interference with its businessestheir respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change material adverse change, or any development involving a prospective Material Adverse Changematerial adverse change, whether or not arising from transactions in the ordinary course business prospects, properties, operations, condition (financial or otherwise), or results of businessoperations of the Company and its subsidiaries taken as a whole, except in each case as described in or contemplated by the Prospectus.
(e) At each of the time this Agreement is executed and at the Closing Date, the Underwriters you shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”)letter from PricewaterhouseCoopers LLP, substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of independent public accountants for the Company’s Board , dated, respectively, as of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on as of the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, Date addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters and Underwriters’ Counselyou, confirming that stating that, among other things: (i) they are independent certified public accountants with respect to the Company within the meaning of the Act and the Regulations and stating that the information provided in response to Item 10 of the Registration Statement is correct insofar as it relates to them; (ii) in their opinion, the financial statements and schedules of the Company included in the Registration Statement and the Prospectus and covered by their opinion therein comply as to form in all material respects with the applicable Regulationsaccounting requirements of the Act and the applicable published rules and regulations of the Commission thereunder; (iii) on the basis of procedures consisting of a reading of the latest available unaudited interim consolidated financial statements of the Company and its subsidiaries, a reading of the minutes of meetings and stating, as consents of the stockholders and boards of directors of the Company and its subsidiaries and the committees of such date (orboards subsequent to September 30, 1998, inquiries of officers and other employees of the Company and its subsidiaries who have responsibility for financial and accounting matters of the Company and its subsidiaries with respect to matters involving changes or developments since the respective dates as transactions and events subsequent to September 30, 1998, a review of which specified interim financial information is given in accordance with the Prospectusstandards established by the American Institute of Certified Public Accountants in Statement of Auditing Standards No. 71, as of Interim Financial Information with respect to the six-month period ended March 31, 1999 and other specified procedures and inquiries to a date not more than five (5) days prior to the date of such date)letter, nothing has come to their attention that would cause them to believe that: (A) the unaudited consolidated financial statements and schedules of the Company presented in the Registration Statement and the Prospectus, including the quarterly information set forth under the caption "Management's Discussion and Analysis of Financial Condition and Results of Operations," do not comply as to form in all material respects with the applicable accounting requirements of the Act and, if applicable, the conclusions Exchange Act and findings the applicable published rules and regulations of the Commission thereunder or that such firm unaudited consolidated financial statements are not fairly presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus; (B) with respect to the period subsequent to March 31, 1999, there were, as of the date of the most recently available monthly consolidated financial information statements of the Company and other matters relating its subsidiaries, if any, and as of a specified date not more than five days prior to the date of such letter, any changes in the capital stock or long-term indebtedness of the Company or any decrease in the net current assets or stockholders' equity of the Company, in each case as compared with the amounts shown in the most recent balance sheet presented in the Registration Statement covered by and the Prospectus, except for changes or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur or which are set forth in such letter or (C) that during the period from April 1, 1999 to the date of the most recent available monthly consolidated financial statements of the Company and its subsidiaries, if any, and to a specified date not more than five days prior to the date of such letter.
, there was any decrease, as compared with the corresponding period in the prior fiscal year, in total revenues, or total or per share net income, except for decreases which the Registration Statement and the Prospectus disclose have occurred or may occur or which are set forth in such letter; and (giv) On they have compared specific dollar amounts, numbers of shares, percentages of revenues and earnings, and other financial information pertaining to the Company and its subsidiaries set forth in the Registration Statement and the Prospectus, which have been specified by you prior to the date of this Agreement Agreement, to the extent that such amounts, numbers, percentages, and on information may be derived from the general accounting and financial records of the Company and its subsidiaries or from schedules furnished by the Company, and excluding any questions requiring an interpretation by legal counsel, with the results obtained from the application of specified readings, inquiries, and other appropriate procedures specified by you set forth in such letter, and found them to be in agreement.
(f) Subject to the final paragraph contained in Section 1 of this Agreement, prior to the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to you such further information, in form certificates and substance documents as you or Underwriters' Counsel may reasonably satisfactory to the Representativerequest (not involving any additional representations, substantially in the form attached hereto as Xxxxx XXXwarranties or covenants).
(hg) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of At the Closing Date, the Shares shall be listed and admitted and have been duly authorized for trading listing on the Nasdaq Global Market and satisfactory evidence National Market, subject to official notice of such action issuance. If any of the conditions specified in this Section 6 shall not have been provided to the Underwriters. The Company shall have taken no action designed to terminatefulfilled when and as required by this Agreement, or likely to have the effect of terminating, the registration if any of the Shares under the Exchange Act certificates, opinions, written statements or delisting letters furnished to you or suspending the Shares from trading on the Nasdaq Global Marketto Underwriters' Counsel pursuant to this Section 6 shall not be in all material respects reasonably satisfactory in form and substance to you and to Underwriters' Counsel, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness all obligations of the underwriting terms and arrangements.
(l) No action shall have been taken and no statuteUnderwriters hereunder may be cancelled by you at, ruleor at any time prior to, 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 Closing Date, prevent and the issuance or sale obligations of the Securities; and no injunction Underwriters to purchase the Additional Shares may be canceled by you at, or order of at any federaltime prior to, state or foreign court shall have been issued that would, as of the Additional Closing Date, prevent the issuance or sale . Notice of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company such cancellation shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect be given to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review MeasuresCompany in writing, or by telephone, facsimile, telex or telegraph, confirmed in writing.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters to purchase and pay for the Securities Shares as provided herein shall be subject to: (i) to the accuracy accuracy, as of the date hereof and the Closing Date and any later date on which Option Shares are to be purchased, as the case may be, of the representations and warranties of the Company herein containedand the Selling Stockholder herein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company and the Selling Stockholder of its their respective obligations hereunder, hereunder and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 2:00 P.M., Eastern TimeSan Francisco time, on the date following the date of this Agreement, or at such later time and date as shall have been be consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof you; and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus thereof shall have been issued; issued and no proceedings for the issuance of such an order that purpose shall have been initiated or, to the knowledge of the Company, the Selling Stockholder or threatened; all requests any Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, Statement or the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the satisfaction of Underwriters’ satisfaction' Counsel.
(b) The Underwriters shall not have reasonably determined, All corporate proceedings and advised the Company, that the Registration Statementother legal matters in connection with this Agreement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement form of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not and the registration, authorization, issue, sale and delivery of the Shares, shall have been any Material Adverse Change or any development involving a prospective Material Adverse Changereasonably satisfactory to Underwriters' Counsel, whether or not arising from transactions and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in the ordinary course of businessthis Section.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(hc) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date orDate, if earlieror any later date on which Option Shares are to be purchased, as the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto)case may be, there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of earnings, operations, shareholders’ equity, properties business or business prospects of the CompanyCompany and its subsidiaries considered as one enterprise from that set forth in the Registration Statement or Prospectus, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described aboveyour sole judgment, is, in the reasonable judgment of the Underwriters, so is material and adverse as to make it and that makes it, in your sole judgment, impracticable or inadvisable to proceed with the sale public offering of Securities or Offering the Shares as contemplated herebyby the Prospectus.
(d) You shall have received on the Closing Date and on any later date on which Option Shares are to be purchased, as the case may be, the following opinion of counsel for the Company dated the Closing Date or such later date on which Option Shares are to be purchased addressed to the Underwriters and with reproduced copies or signed counterparts thereof for each of the Underwriters, to the effect that:
(i) The Underwriters shall have received Company and each "SIGNIFICANT SUBSIDIARY" (as that term is defined in Regulation S-X of the Act) has been duly incorporated and is validly existing as a lock-up agreement from corporation in good standing under the laws of the jurisdiction of its incorporation;
(ii) The Company and each Lock-Up PartySignificant Subsidiary has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus;
(iii) The Company and each Significant Subsidiary is duly executed by the applicable Lock-Up Partyqualified to do business as a foreign corporation and is in good standing in each jurisdiction, if any, in each case substantially which the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the form attached condition (financial or otherwise), earnings, operations or business of the Company and its subsidiaries considered as Annex IVone enterprise. To such counsel's knowledge, the Company does not own or control, directly or indirectly, any corporation, association or other entity other than those subsidiaries listed on EXHIBIT 21.1 to the Registration Statement.
(jiv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus under the caption "CAPITALIZATION" as of the dates stated therein, the issued and outstanding shares of capital stock of the Company (including the Option Shares) have been duly and validly issued and are fully paid and nonassessable, and, to such counsel's knowledge, will not have been issued in violation of or subject to any preemptive right, co-sale right, registration right, right of first refusal or other similar right;
(v) All issued and outstanding shares of capital stock of each Significant Subsidiary of the Company have been duly authorized and validly issued and are fully paid and nonassessable, and, to such counsel's knowledge, have not been issued in violation of or subject to any preemptive right, co-sale right, registration right, right of first refusal or other similar right and are owned by the Company free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest;
(vi) The Shares are registered to be issued by the Company pursuant to the terms of this Agreement have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable, and will not have been issued in violation of or subject to any preemptive right, co-sale right, registration right, right of first refusal or other similar right.
(vii) The Company has the corporate power and authority to enter into this Agreement and to issue, sell and deliver to the Underwriters the Shares to be issued and sold by it hereunder;
(viii) This Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery by you, is a valid and binding agreement of the Company, enforceable in accordance with its terms, except insofar as indemnification provisions may be limited by applicable law and except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally or by general equitable principles;
(ix) The Registration Statement has become effective under the Exchange Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Act; (x) The Registration Statement and the Prospectus, and each amendment or supplement thereto (other than the financial statements (including supporting schedules) and financial data derived therefrom, as to which such counsel need express no opinion), as of the Closing Dateeffective date of the Registration Statement, complied as to form in all material respects with the Shares shall requirements of the Act and the applicable Rules and Regulations;
(xi) The information in the Prospectus under the caption "DESCRIPTION OF CAPITAL STOCK," to the extent that it constitutes matters of law or legal conclusions, has been reviewed by such counsel and is a fair summary of such matters and conclusions; and the forms of certificates evidencing the Common Stock and filed as exhibits to the Registration Statement comply with Delaware law;
(xii) The description in the Registration Statement and the Prospectus of the charter and bylaws of the Company and of statutes are accurate and fairly present the information required to be listed presented by the Act and admitted the applicable Rules and authorized for trading on Regulations;
(xiii) To such counsel's knowledge, there are no agreements, contracts, leases or documents to which the Nasdaq Global Market Company is a party of a character required to be described or referred to in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which are not described or referred to therein or filed as required;
(xiv) The performance of this Agreement and satisfactory the consummation of the transactions herein contemplated (other than performance of the Company's indemnification obligations hereunder, concerning which no opinion need be expressed) will not (a) result in any violation of the Company's charter or bylaws or (b) to such counsel's knowledge, result in a material breach or violation of any of the terms and provisions of, or constitute a default under, any bond, debenture, note or other evidence of indebtedness, or any lease, contract, indenture, mortgage, deed of trust, loan agreement, joint venture or other agreement or instrument known to such action shall counsel to which the Company is a party or by which its properties are bound, or any applicable statute, rule or regulation known to such counsel or, to such counsel's knowledge, any order, writ or decree of any court, government or governmental agency or body having jurisdiction over the Company or any of its subsidiaries, or over any of their properties or operations;
(xv) No consent, approval, authorization or order of or qualification with any court, government or governmental agency or body having jurisdiction over the Company or any of its subsidiaries, or over any of their properties or operations is necessary in connection with the consummation by the Company of the transactions herein contemplated, except such as have been provided to obtained under the Underwriters. The Company shall have taken no action designed to terminate, Act or likely to have such as may be required under state or other securities or Blue Sky laws in connection with the effect of terminating, purchase and the registration distribution of the Shares under by the Exchange Underwriters;
(xvi) To such counsel's knowledge, there are no legal or governmental proceedings pending or threatened against the Company or any of its subsidiaries of a character required to be disclosed in the Registration Statement or the Prospectus by the Act or delisting the Rules and Regulations other than those described therein;
(xvii) To such counsel's knowledge, neither the Company nor any of its subsidiaries is presently (a) in material violation of its respective charter or suspending bylaws, or (b) in material breach of any order, writ or decree of any court or governmental agency or body having jurisdiction over the Shares from trading on Company or any of its subsidiaries, or over any of their properties or operations; and
(xviii) To such counsel's knowledge, except as set forth in the Nasdaq Global MarketRegistration Statement and Prospectus, nor will no holders of Common Stock or other securities of the Company have received any information suggesting that registration rights with respect to securities of the Commission Company and, except as set forth in the Registration Statement and Prospectus, all holders of securities of the Company having rights known to such counsel to registration of such shares of Common Stock or other securities in the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection offering contemplated by this Agreement, because of the filing of the Registration Statement by the Company have, with respect to the fairness and reasonableness offering contemplated thereby, waived such rights or such rights have expired by reason of the underwriting terms and arrangements.
(l) 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 lapse of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations time following notification of the Company.
(m) The Company shall 's intent to file the Registration Statement or have furnished included securities in the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing Registration Statement pursuant to the Revised Cybersecurity Review Measuresexercise of and in full satisfaction of such rights; and In addition, such counsel shall state that such counsel has participated in conferences with officials and other representatives of the Company, the Representatives, Underwriters' Counsel and the independent certified public accountants of the Company, at which such conferences the contents of the Registration Statement and Prospectus and related matters were discussed, and although they have not verified the accuracy or completeness of the statements contained in the 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 thereto (other than the financial statements including supporting schedules 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 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 Registration Statement, the Prospectus and any amendment or supplement thereto (except as aforesaid) contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Counsel rendering the foregoing opinion may rely as to questions of law not involving the laws of the United States or the State of California and the State of Delaware upon opinions of local counsel, and as to questions of fact upon representations or certificates of officers of the Company, the Selling Stockholder or officers of the Selling Stockholder, and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in any such opinion, representation or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Representatives of the Underwriters, and to Underwriters' Counsel.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters Underwriter to purchase and pay for the Firm Shares on the Closing Date and the Option Shares, if any, on any Option Closing Date are subject to the condition that the Registration Statement and all post-effective amendments thereto shall have become effective under the Securities Act, to the accuracy, as provided herein shall be subject to: (i) of the accuracy Applicable Time, the Closing Date or any Option Closing Date, of the representations and warranties of the Company herein containedTransaction Entities and the Advisor contained herein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company Transaction Entities and the Advisor of its their respective obligations hereunder, and (iv) to each of the following additional terms and conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date oror any Option Closing Date, if earlieras applicable:
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act, and no proceedings for that purpose or pursuant to Section 8A of the Securities Act shall have been initiated or threatened by the Commission, and any request on the part of the Commission for additional information (to be included in the Registration Statement or otherwise) shall have been disclosed to the Underwriter and complied with to the reasonable satisfaction of counsel to the Underwriter;
(ii) Since the respective dates as of which information is given in the Registration Statement (exclusive Statement, the Time of any amendment thereof) Sale Prospectus and the Prospectus (exclusive of any supplement thereto)Prospectus, there shall has not have been any material adverse change or any development involving a prospective material adverse change in or affecting the Ordinary Shares business, management, Properties, assets, rights, operations, condition (financial or long-term debt otherwise) or prospects of the Company or any change or development involving and the Subsidiaries taken as a changewhole, whether or not arising from transactions in the ordinary course of business; and
(iii) The Prospectus and each Issuer Free Writing Prospectus that the Company is required to file pursuant to Rules 424, 430A, 430B, 430C or 433 of the Securities Act, as applicable, shall have been filed within the time period prescribed by, and in compliance with, the Securities Act Rules and Regulations.
(b) The Underwriter shall have received (i) a certificate, dated as of the Closing Date or any Option Closing Date, as the case may be, of the Chief Executive Officer and the Chief Financial Officer of the Company and (ii) a certificate, dated as of the Closing Date or any Option Closing Date, as the case may be, of the general partner of the Operating Partnership, in each case, to the businesseffect set forth in Section 8(a) above and to the effect that the representations and warranties of the Transaction Entities contained in this Agreement are true and correct as of the Closing Date or any Option Closing Date, condition as the case may be, and that the Transaction Entities have complied with all of the agreements and satisfied all of the conditions on their part to be performed or satisfied hereunder on or before the Closing Date or any Option Closing Date, as the case may be. Any officer signing and delivering a certificate required pursuant to this Section 8(b) may rely upon the best of his or her knowledge as to proceedings threatened.
(financial c) The Underwriter shall have received a certificate, dated as of the Closing Date or otherwise)any Option Closing Date, results as the case may be, of operationsthe Chief Executive Officer of the Advisor, shareholders’ equityto the effect that the representations and warranties of the Advisor contained in Section 2 of this Agreement are true and correct as of the Closing Date or any Option Closing Date, properties as the case may be, and that the Advisor has complied with all of the agreements and satisfied all of the conditions on its part to be performed or prospects satisfied hereunder on or before the Closing Date or any Option Closing Date, as the case may be. Any officer signing and delivering a certificate required pursuant to this Section 8(c) may rely upon the best of his or her knowledge as to proceedings threatened.
(d) The Underwriter shall have received on the Closing Date or any Option Closing Date, as applicable, the opinion and Rule 10b-5 statement of Ledgewood, P.C., outside counsel for the Transaction Entities, dated the Closing Date or any Option Closing Date, as applicable, addressed to the Underwriter, substantially in the form of Exhibit B hereto.
(e) The Underwriter shall have received on the Closing Date or any Option Closing Date, as applicable, the favorable tax opinion of Ledgewood, P.C., tax counsel for the Company, taken dated the Closing Date or any Option Closing Date, as a wholeapplicable, including but not limited substantially in the form of Exhibit C hereto.
(f) The Underwriter shall have received on the Closing Date or any Option Closing Date, as applicable, an opinion of Xxxxxxx LLP, Maryland counsel for the Company, dated the Closing Date or any Option Closing Date, as applicable, addressed to the occurrence Underwriter (and stating that it may be relied upon by counsel to the Underwriter), substantially in the form of Exhibit D hereto.
(g) The Underwriter shall have received on the Closing Date or any fireOption Closing Date, floodas applicable, storman opinion and Rule 10b-5 statement of Hunton & Xxxxxxxx LLP, explosioncounsel for the Underwriter, accidentdated the Closing Date or any Option Closing Date, act as applicable, addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter.
(h) The Underwriter shall have received, on the date hereof, a letter dated the date hereof, in form and substance satisfactory to the Underwriter, from Xxxxx Xxxxxxxx LLP, independent public accountants, containing statements and information of war the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or terrorism or other calamityincorporated by reference in the Registration Statement, the effect Time of which, in any such case described above, is, in Sale Prospectus and the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated herebyProspectus.
(i) The Underwriters On the Closing Date, and, if applicable, any Option Closing Date, the Underwriter shall have received from Xxxxx Xxxxxxxx LLP a lock-up agreement from each Lock-Up Partyletter, duly executed by dated as of the Closing Date, and, if applicable, any Option Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (h) of this Section 8, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date or the applicable Lock-Up Party, in each case substantially in the form attached as Annex IVOption Closing Date.
(j) The Shares are registered under Underwriter shall have received, on the Exchange Act date hereof, a letter dated the date hereof, in form and substance satisfactory to the Underwriter, from McGladrey LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(k) On the Closing Date, and, if applicable, any Option Closing Date, the Underwriter shall have received from McGladrey LLP a letter, dated as of the Closing Date, and, if applicable, any Option Closing Date, to the Shares effect that they reaffirm the statements made in the letter furnished pursuant to subsection (j) of this Section 8, except that the specified date referred to shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided a date not more than three business days prior to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission Closing Date or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangementsapplicable Option Closing Date.
(l) No action The Underwriter shall have been taken received, on the date hereof, a letter dated the date hereof, in form and no statutesubstance satisfactory to the Underwriter, rulefrom KPMG LLP, regulation independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or order incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(m) On the Closing Date, and, if applicable, any Option Closing Date, the Underwriter shall have been enactedreceived from KPMG LLP a letter, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, dated as of the Closing Date, prevent and, if applicable, any Option Closing Date, to the issuance effect that they reaffirm the statements made in the letter furnished pursuant to subsection (l) of this Section 8, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date or sale the applicable Option Closing Date.
(n) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Underwriter and the officers, directors and stockholders of the Securities; Company listed on Schedule II hereto, relating to sales and no injunction certain other dispositions of shares of Common Stock or order of any federalcertain other securities, state delivered to the Underwriter on or foreign court before the date hereof, shall be in full force and effect on the Closing Date.
(o) The Common Stock shall have been issued that wouldapproved for listing on the NYSE MKT, as subject only to official notice of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Companyissuance.
(mp) FINRA, upon review of the terms of the public offering of the Shares, shall not have objected to such offering, such terms or the Underwriter’s participation in the same and shall have issued a “no objections” letter evidencing such.
(q) The Company shall have furnished to the Underwriters Underwriter such further information, certificates and Underwriters’ Counsel with such other certificates, opinions or documents as the Underwriter may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they may have are in form and substance reasonably requested.
(n) The CSRC shall have concluded satisfactory to counsel for the CSRC Filings and published the filing results on January 2, 2024 in respect Underwriter. If any of the CSRC Filings on its websiteconditions hereinabove provided for in this Section 8 shall not have been fulfilled when and as required by this Agreement, and the obligations of the Underwriter hereunder may be terminated by the Underwriter by notifying the Company of such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked termination in writing at or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect prior to the Company’s proposed overseas listing pursuant to Closing Date or any Option Closing Date, as the Revised Cybersecurity Review Measurescase may be.
Appears in 1 contract
Samples: Equity Underwriting Agreement (Independence Realty Trust, Inc)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters to purchase Underwritten Securities pursuant to the applicable Terms Agreement are subject to the accuracy, at and pay for (except as otherwise stated herein) as of the Securities as provided herein shall be subject to: (i) date hereof, the accuracy Applicable Time, the applicable Representation Date, the Closing Time and at each Date of Delivery, of the representations and warranties made herein by the Company, to the accuracy of the Company herein contained, as statements of the date hereof Company’s officers or directors in any certificate furnished pursuant to the provisions hereof, to compliance at and as of the Closing Time and at each Date of Delivery by the Company, with its covenants and agreements herein contained and other provisions hereof to be satisfied at or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished prior to the Underwriters Closing Time, or to Underwriters’ Counsel pursuant to this Section 7 Date of any misstatement or omissionDelivery, (iii) as the performance by the Company of its obligations hereundercase may be, and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have has become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Time and any Date and the actual time of the ClosingDelivery, (i) no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings for the issuance of such an order that purpose shall have been initiated or, to the knowledge of the Company or threatened; all requests you, threatened by the Commission and any request on the part of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement reasonable satisfaction of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions each preliminary prospectus and negative assurance the Prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B), (iii) the Final Term Sheet and any other material required to be filed by the Company pursuant to Rule 433(d) of the 1933 Act Regulations shall have been filed with the Commission within the applicable time periods prescribed for such filings under such Rule 433, (iv) the Company shall have paid the required Commission filing fees relating to the Underwritten Securities within the time period required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations, and (v) there shall not have come to your attention any facts that would cause you to believe that (a) the Prospectus, together with the applicable Prospectus Supplement, at the time it was required to be delivered (or but for the exception afforded by Rule 172 of the 1933 Act Regulations would be required to be delivered) to purchasers of the Underwritten Securities, or (b) the General Disclosure Package, at 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 existing at such time, not misleading.
(b) At the time of execution of the applicable Terms Agreement, you shall have received from PricewaterhouseCoopers LLP a letter, dated the date of such execution, in form and substance satisfactory to you, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters.
(c) At the Closing Time, you shall have received from PricewaterhouseCoopers LLP a letter, dated the Closing Time, to the effect that such accountants reaffirm, as of the Closing Time, and as though made on the Closing Time, the statements made in the letter furnished by such accountants pursuant to paragraph (b) of this Section 8, except that the specified date will be a date not more than three business days prior to the Closing Time.
(d) At the Closing Time, you shall have received from DLA Piper UK LLPXxxxx Day, U.S. legal counsel for the Company, an opinion, dated as of the Closing Date Time, substantially in the form set forth in Exhibit B hereto and addressed to such further effect as counsel to the Underwriters may reasonably request.
(e) At the Closing Time, you shall have received from Sidley Austin LLP, counsel for the Underwriters, their opinion or opinions dated the Closing Time in form and substance satisfactory to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel they may reasonably request to enable for the purpose of enabling them to pass on upon such matters. XxxXxxxxx Law OfficesIn giving their opinion, PRC counsel Sidley Austin LLP may rely as to matters involving the laws of the State of Ohio upon the opinion of Xxxxx Day. Xxxxx Day and Sidley Austin LLP may rely (i) as to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer qualification of the Company (or its subsidiaries to do business in any state or jurisdiction, upon certificates of appropriate government officials, telephonic confirmation by representatives of such states or confirmation from information contained on the “Officers’ Certificate”), substantially in the form attached hereto as Annex I websites of such states and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as to matters of fact, upon certificates and written statements of officers and employees of and accountants for the Company or its subsidiaries.
(f) Subsequent to the execution and delivery of this Agreement and the Terms Agreement and prior to the Closing Time or any Date of Delivery:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that either (x) does not indicate the direction of the date hereof and as possible change or (y) indicates a negative change, in the rating accorded any of the Closing DateCompany’s securities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the 1934 Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the representations and warranties condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement Statement, the General Disclosure Package and the Prospectus (exclusive of any amendments or any amendment thereof has been issued supplements thereto subsequent to the date of this Agreement) that, in your judgment, is material and no proceedings therefor have been initiated or threatened by adverse and that makes it, in your judgment, impracticable to market the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included Underwritten Securities on the terms and in the manner contemplated in the Registration Statement Statement, the General Disclosure Package and the Prospectus pursuant to Prospectus.
(g) At the Regulations which are Closing Time (i) there shall not so includedhave been, and (vii) subsequent to since the date of the applicable Terms Agreement or since the respective dates as of which information is given in the Registration Statement Statement, the General Disclosure Package and the Prospectus, there has not been any Material Adverse Change Effect, other than as set forth in the Registration Statement, the General Disclosure Package and the Prospectus, (ii) 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, (iii) the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the 1933 Act objecting to the use of the automatic shelf registration statement form, (iv) no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act and no proceeding therefor shall have been instituted or threatened by the Commission, (v) if the issuance of the Underwritten Securities constitutes a reopening of Previously-Issued Securities, no event of default or default with notice and/or lapse of time that would be an event of default in respect of the Previously- Issued Securities has occurred and is continuing and (vi) you shall have received at the Closing Time a certificate of (A) the President, Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer or any development involving a prospective Material Adverse ChangeExecutive Vice President of the Company and (B) the President, whether Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer or any Executive Vice President of the Company (in each case, only if such officer had not arising from transactions in executed the ordinary course certificate pursuant to clause (vi)(A) above), dated as of businessthe Closing Time, evidencing compliance with the provisions of this Section 8(g).
(eh) At each of the Closing Date, the Underwriters You shall have received a certificate certificate, dated the Closing Time, of (i) the President, Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer or any Executive Vice President of the Company signed by and (ii) the Secretary President, Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer or any Executive Vice President of the Company (in each case, only if such officer had not executed the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: certificate pursuant to clause (i) above), to the effect that each the representations and warranties of the Charter and Bylaws is Company contained in Section 2(a) hereof are true and complete, has not been modified and is in full force and effect; (ii) that correct with the resolutions of the Company’s Board of Directors relating to the Offering are in full same force and effect as though expressly made at and have not been modified; (iii) the good standing as of the Company; and Closing Time.
(ivi) The Company shall have furnished to you such additional certificates as specified in the applicable Terms Agreement as you may have reasonably requested as to the incumbency accuracy, at and as of the officers Closing Time, of the Company. The documents referred representations and warranties made herein by them, as to in such certificate shall compliance, at and as of the Closing Time, by them with their covenants and agreements herein contained and other provisions hereof to be attached satisfied at or prior to such certificatethe Closing Time, and as to other conditions to the obligations of the Underwriters hereunder.
(fj) On In the date event the Underwriters exercise their option provided in a Terms Agreement as set forth in Section 3 hereof to purchase all or any portion of this Agreement and on the Closing DateOption Securities, the Underwriters representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company hereunder shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) be true and correct as of each such dateDate of Delivery, addressed to the Underwriters and you shall have received:
(i) A letter from PricewaterhouseCoopers LLP in form and substance satisfactory to you and dated such Date of Delivery, substantially the Underwriters same in scope and Underwriters’ Counselsubstance as the letter furnished to you pursuant to Section 8(c), confirming except that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such specified date (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 letter furnished pursuant to this Section 8(j)(i) shall be a date not more than five (5) three business days prior to such date), the conclusions and findings Date of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letterDelivery.
(gii) On the date The opinion of this Agreement and on the Closing DateXxxxx Day, the Company shall have furnished to the Representative, a certificate on behalf of counsel for the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to counsel for the RepresentativeUnderwriters, substantially in dated such Date of Delivery, relating to the form attached hereto Option Securities and otherwise to the same effect as Xxxxx XXXthe opinion required by Section 8(d).
(hiii) Subsequent The opinion of Sidley Austin LLP, counsel for the Underwriters, dated such Date of Delivery, relating to the execution Options Securities and delivery otherwise to the same effect as the opinion required by Section 8(e).
(iv) A certificate, dated such Date of Delivery, of (A) the President, Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer or any Executive Vice President of the Company and (B) the President, Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer or any Executive Vice President of the Company (in each case, only if such officer had not executed the certificate pursuant to clause (A) above) confirming that the certificate or certificates delivered at the Closing Time pursuant to Section 8(g)(vi) and 8(h) remains or remain true as of such Date of Delivery.
(v) Such additional certificates, dated such Date of Delivery, as you may have reasonably requested pursuant to Section 8(i). If any of the conditions hereinabove provided for in this Section shall not have been satisfied when and as required to be satisfied, the applicable Terms Agreement and may be terminated by you by notifying the Company of such termination in writing or by telegram at or prior to the Closing Date orTime, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares you shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence entitled to waive any of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligibleconditions.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 1 contract
Samples: Underwriting Agreement (DDR Corp)
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters to purchase and pay for the Securities Shares as provided herein shall be subject to: (i) to the accuracy accuracy, as of the date hereof and the Closing Date and any later date on which Option Shares are to be purchased, as the case may be, of the representations and warranties of the Company herein containedherein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its their respective obligations hereunder, hereunder and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 2:00 P.M., Eastern TimeSan Francisco time, on the date following the date of this Agreement, or at such later time and date as shall have been be consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof you; and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus thereof shall have been issued; issued and no proceedings for the issuance of such an order that purpose shall have been initiated or, to the knowledge of the Company or threatened; all requests any Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, Statement or the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of Underwriters’ satisfaction' Counsel.
(b) The Underwriters shall not have reasonably determined, All corporate proceedings and advised the Company, that the Registration Statementother legal matters in connection with this Agreement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement form of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not and the registration, authorization, issue, sale and delivery of the Shares, shall have been any Material Adverse Change or any development involving a prospective Material Adverse Changereasonably satisfactory to Underwriters' Counsel, whether or not arising from transactions and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in the ordinary course of businessthis Section 6.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(hc) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date orDate, if earlieror any later date on which Option Shares are to be purchased, as the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto)case may be, there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operationsearnings, shareholders’ equity, properties operations or prospects business of the CompanyCompany and its subsidiaries considered as one enterprise from that set forth in the Registration Statement or the Prospectus, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described aboveyour reasonable judgment, is, in the reasonable judgment of the Underwriters, so is material and adverse as to make it and that makes it, in your reasonable judgment, impracticable or inadvisable to proceed with the sale public offering of Securities or Offering the Shares as contemplated herebyby the Prospectus.
(i) The Underwriters You shall have received on the Closing Date and on any later date on which Option Shares are to be purchased, as the case may be, the following opinion of counsel for the Company as to the Company and all United States subsidiaries, Xxxxxx, Xxxxxx & Xxxxxxxxx, and of Canadian counsel as to opinions (A), (B), (C), (D), (E), (G), (O), (P), (Q), (R) below, for all Canadian subsidiaries, each dated the Closing Date or such later date on which Option Shares are to be purchased addressed to the Underwriters and with reproduced copies or signed counterparts thereof for each of the Underwriters, to the effect that:
(A) Each of the Company and its subsidiaries organized as a lockcorporation has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation;
(B) Each subsidiary organized as a limited liability company has been duly organized and is in good standing under the laws of its jurisdiction of organization;
(C) Each of the Company and its subsidiaries organized as a corporation has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus;
(D) Each subsidiary organized as a limited liability company has the power and authority to own, lease and operate its properties and to conduct its business as now conducted as described in the Prospectus;
(E) Each of the Company and its subsidiaries is duly qualified to do business as a foreign corporation and is in good standing in each state specified on Schedule C hereto. To such counsel's knowledge, the Company does not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries;
(F) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus under the caption "Capitalization" as of the dates stated therein, the issued and outstanding shares of capital stock of the Company have been duly and validly issued and are fully paid and nonassessable, and, to such counsel's knowledge, will not have been issued in violation of or subject to any preemptive right, co-up agreement from each Lock-Up Partysale right, duly executed registration right, right of first refusal or other similar right (other than such preemptive rights or other rights to subscribe for or purchase securities as were fully complied with or expressly waived or with respect to the violation of which the right to make a claim is barred by the applicable Lockstatute of limitations);
(G) All issued and outstanding shares of capital stock of each subsidiary of the Company organized as a corporation have been duly authorized and validly issued and are fully paid and nonassessable, and, to such counsel's knowledge, have not been issued in violation of or subject to any preemptive right, co-Up Partysale right, in each case substantially registration right, right of first refusal or other similar right and are owned by the Company free and, except pursuant to the BT Credit Facility or as described in the form attached Prospectus clear of any pledge, lien, security interest, encumbrance, claim or equitable interest (other than such preemptive rights or other rights to subscribe for or purchase securities as Annex IV.were fully complied with or expressly waived or with respect to the violation of which the right to make a claim is barred by the applicable statute of limitations);
(jH) The Firm Shares are registered or the Option Shares, as the case may be, to be issued by the Company pursuant to the terms of this Agreement have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable, and, to such counsel's Knowledge will not have been issued in violation of or subject to any preemptive right, co-sale right, registration right, right of first refusal or other similar right (other than such preemptive rights or other rights to subscribe for or purchase securities as were fully complied with or expressly waived or with respect to the violation of which the right to make a claim is barred by the applicable statute of limitations);
(I) The Company has the corporate power and authority to enter this Agreement and to issue, sell and deliver to the Underwriters the Shares to be issued and sold by it hereunder;
(J) This Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery by you, is a valid and binding agreement of the Company, enforceable in accordance with its terms, except insofar as indemnification provisions may be limited by applicable law or public policy and except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally or by general equitable principles;
(K) The Commission has advised the Company that the Registration Statement has become effective under the Exchange Act and, as to such counsel's knowledge, no stop order suspending the effectiveness of the Closing DateRegistration Statement has been issued and no proceedings for that purpose have been instituted or are currently pending or overtly threatened under the Act;
(L) The information in the Prospectus under the captions "Description of Capital Stock", "Risk Factors - Potential Liability for Taxes Related to the Distributions", "Risk Factors - Possible Limitations on Issuances of Common Stock", and "The Spin-Offs from U.S. Office Products", to the extent that it constitutes matters of law or legal conclusions, has been reviewed by such counsel and is a fair summary of such matters and conclusions in all material respects; and the form of certificates evidencing the Common Stock and filed as exhibits to the Registration Statement comply with Delaware law;
(M) The descriptions in the Registration Statement and the Prospectus of the charter and bylaws of the Company and of statutes are accurate and fairly present the information required to be presented by the Act and the applicable Rules and Regulations; the descriptions of the Distribution Agreement, the Shares shall Tax Allocation Agreement, the Employee Benefits Agreement, and the Tax Indemnification Agreement in the Registration Statement and the Prospectus accurately summarize in all material respects the material terms of such agreements;
(N) To such counsel's knowledge, there are no agreements, contracts, leases or documents to which the Company is a party of a character required to be listed described or referred to in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement which are not described or referred to therein or filed as required;
(O) The performance of this Agreement and admitted the consummation of the transactions herein contemplated (other than performance of the Company's indemnification and authorized for trading on contribution obligations hereunder, concerning which no opinion need be expressed) will not (a) result in any violation of the Nasdaq Global Market Company's charter or bylaws or (b) to such counsel's knowledge, result in a material breach or violation of any of the terms and satisfactory provisions of, or constitute a default under, any material bond, debenture, note or other evidence of indebtedness, or any material lease, contract, indenture, mortgage, deed of trust, loan agreement, joint venture or other agreement or instrument known to such action shall counsel to which the Company is a party or by which its properties are bound, (c) any applicable statute, rule or regulation known to such counsel or, (d) to such counsel's knowledge, any order, writ or decree of any court, government or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or over any of their properties or operations; provided, however, that no opinion need be rendered concerning state securities laws, Canadian securities laws, or Blue Sky laws or the rules and regulations of NASD;
(P) No consent, approval, authorization or order of or qualification with any court, government or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or over any of their properties or operations is necessary in connection with the consummation by the Company of the transactions herein contemplated, except such as have been provided to obtained under the Underwriters. The Company shall have taken no action designed to terminate, Act or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting such as may be required under state or suspending other securities or Blue Sky laws or the NASD in connection with the purchase and the distribution of the Shares from trading on by the Nasdaq Global MarketUnderwriters;
(Q) To such counsel's knowledge, there are no legal or governmental proceedings pending or threatened against the Company or any of its subsidiaries of a character required to be disclosed in the Registration Statement or the Prospectus by the Act or the Rules and Regulations or by the Exchange Act or the applicable rules and regulations of the Commission thereunder, other than those described therein;
(R) To such counsel's knowledge, neither the Company nor will any of its subsidiaries is presently (a) in material violation of its respective charter or bylaws in the case of corporations or certificate of organizaation or operating agreement in the case of limited liability companies or (b) in material breach of any applicable statute, rule or regulation known to such counsel or, to such counsel's knowledge, any order, writ or decree of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or over any of their properties or operations, except in the case of clause (b) for such breach which individually or in the aggregate would not have a Material Adverse Effect;
(S) To such counsel's knowledge, except as described in the Prospectus no holders of shares of Common Stock or other securities of the Company have received any information suggesting that registration rights with respect to securities of the Commission Company and, except as set forth in the Registration Statement and the Prospectus, all holders of securities of the Company having rights known to such counsel to registration of such shares of Common Stock or other securities, because of the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection filing of the Registration Statement by the Company have, with respect to the fairness and reasonableness offering contemplated thereby, waived such rights or such rights have expired by reason of the underwriting terms and arrangements.
(l) 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 lapse of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations time following notification of the Company.
(m) The Company shall 's intent to file the Registration Statement or have furnished included securities in the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing Registration Statement pursuant to the Revised Cybersecurity Review Measures.exercise of and in full satisfaction of such rights; and
Appears in 1 contract
Samples: Underwriting Agreement (Aztec Technology Partners Inc /De/)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters Underwriter to purchase and pay for sell the Securities as provided herein shall be Shares is subject to: (i) to the continuing accuracy of and compliance with the representations and warranties on the part of the Company contained herein contained, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) to the performance by the Company of its obligations and covenants hereunder, to the absence from any certificates, opinions, written statements or letters furnished to the Underwriters Underwriter or to Underwriters’ Counsel pursuant to this Section 7 its counsel of any misstatement or omission, (iii) omission that is material to the performance sale of the Shares by the Company of its obligations hereunder, Underwriter and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 5:00 P.M., Eastern TimeNew York time, on the date of this Agreement, or at such later date or time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time periodUnderwriter; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings for the issuance of such an order that purpose shall have been initiated instituted or threatenedshall be pending, threatened or contemplated by the Commission; all requests and any request for additional information on the part of the Commission for additional information (to be included in the Registration Statement, Statement or the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with with, and no amendments or supplements to the Underwriters’ satisfactionRegistration Statement or Prospectus shall have been filed to which the Underwriter and its counsel have not given their consent.
(b) The Underwriters shall not have reasonably determinedAll corporate action taken and all legal opinions and proceedings relating to the Shares, Underwriter's Warrants, and advised the CompanyWarrant Shares, that the Registration StatementStatement and the Prospectus and all other matters incident thereto and to the transactions to which this Agreement relate shall be reasonably satisfactory to Underwriter's counsel and they shall have been furnished with such certificates, documents and information as they may request in this connection.
(c) The Company shall have performed each of the General Disclosure Package agreements herein contained and required to be performed by it at or prior to the Prospectus, Closing Date.
(d) On the Closing Date (i) the Registration Statement and the Prospectus and any amendments or supplements thereto shall contain all statements which are required to be stated therein in accordance with the Act and the Rules under the Act and shall in all material respects conform to the requirements of the Act and the Rules under the Act and neither the Registration Statement nor the Prospectus nor any amendment thereof or supplement thereto, or thereto shall contain any Issuer Free Writing Prospectus, contains an untrue statement of a material fact which, in the Underwriters’ reasonable opinion, is material, or omits omit to state a any material fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to since the respective dates as of which information is given in the Registration Statement and the Prospectus there shall have been no material adverse changes in the business, property or financial condition of the Company from that set forth in the Registration Statement and the Prospectus, and there has shall have been no material transaction, contract or agreement entered into by the Company which is not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions referred to in the ordinary course Registration Statement and the Prospectus, (iii) no action, suit or proceeding at law or in equity shall be pending or, to the knowledge of the Company, threatened against the Company which would be required to be set forth in the Registration Statement and the Prospectus other than as set forth therein, and no proceedings shall be pending or, to the knowledge of the Company, threatened against the Company before or by any Federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a material adverse effect upon the business, property, financial condition or income of the Company, and (iv) the Company shall not have declared or made any payments of dividends or made any acquisitions of capital stock or made any other distribution on outstanding Shares of capital stock other than as set forth in the Registration Statement.
(e) At each The Underwriter shall receive on, and as of the Closing Date, the Underwriters shall have received favorable opinion of Parker, Duryee, Xxxxxx & Xxxx, a certificate of professional corporation, counsel for the Company signed by Company, addressed to the Secretary of Underwriter, in form and substance satisfactory to counsel to the Company (Underwriter, to the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: effect that:
(i) that the Company and its subsidiaries are each corporations in good standing, duly organized and validly existing under the laws of their state of incorporation, and have full corporate power pursuant to their Certificates of Incorporation and By-Laws to own their properties and to conduct their business, present and proposed, as set forth in the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; Prospectus;
(ii) that the resolutions Company and its subsidiaries are each duly qualified to transact the business in which it is engaged and are in good standing in each jurisdiction in which its ownership or lease of property requires such qualification or registration, (naming such jurisdictions), except where the failure to so qualify would not have a material adverse effect on the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; ;
(iii) the good standing Company does not own or control any operating subsidiaries except the subsidiaries as set forth in the Prospectus and the Company owns all of the capital stock of the subsidiaries, as set forth in the Prospectus, free and clear of any liens, claims or encumbrances;
(iv) the Company has an authorized and outstanding capitalization as set forth in the Registration Statement; all of the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable and such shares are not, and the Shares to be sold by the Company hereunder are not, subject to the preemptive right of any shareholder of the Company, the Shares to be sold by the Company have been validly authorized and, when issued, will be fully paid and non-assessable; and the Warrant Shares issuable upon exercise of the Underwriter's Warrants have been validly authorized and reserved for issuance and when issued upon exercise of the Underwriter's Warrants will be validly issued, fully paid and non-assessable;
(v) the Common Stock and Shares of the Company conform as to legal matters to the description thereof contained in the Prospectus and such description conforms to the rights set forth in the instruments defining the same, and the certificates for the Shares delivered at the Closing are in due and proper form.
(vi) this Agreement has been duly and validly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company in accordance with its terms, subject as to enforcement of remedies, to the discretion of a court with respect to the application of equitable principles and to applicable bankruptcy, insolvency, moratorium and other laws now or hereafter in effect affecting the rights of creditors generally and except that such counsel need not express an opinion with respect to the indemnification and contribution provisions set forth in Paragraphs 6 and 7 of this Agreement; the Company has the corporate power to sell and deliver the Shares pursuant to the provisions of this Agreement and valid marketable title thereto, free and clear of any claims, liens and encumbrances will pass to the purchasers thereof; to the best of such counsel's knowledge after reasonable investigation, the execution, performance and delivery of this Agreement and the consummation of the transactions contemplated in this Agreement to be performed by the Company do not conflict with, result in a breach of, or constitute a default under the Company's or any subsidiaries' certificate of incorporation, by-laws, or any indenture, mortgage, deed of trust, voting trust agreement, note agreement or other agreement or instrument known to counsel to which the Company or any of its subsidiaries is a party or, to the best of such counsel's knowledge, any statute, order, rule or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Company or any of its subsidiaries;
(vii) to the knowledge of such counsel, no consent, approval, authorization or order of any court or governmental agency or body is required for the performance by the Company or any of the subsidiaries of the transactions contemplated in this Agreement to be performed by it or them, except for such consents, approvals, authorizations or orders as need be obtained under the Act and such as may be required under the securities laws of any jurisdiction in connection with the offer hereby. Such counsel need not express any opinion with respect to compliance with the securities laws of the respective states.
(1) the Registration Statement has become effective under the Act, and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened; and (iv2) the Registration Statement, the Prospectus and each amendment thereof or supplement thereto (except for the financial statements and notes thereto and other financial and statistical information included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the incumbency requirements of the officers Act and the Rules under the Act.
(ix) the Underwriter's Warrants to be sold by the Company have been duly authorized and constitute valid and binding obligations of the Company. The documents referred Company subject as to enforcement of remedies to the discretion of a court with respect to the granting of equitable relief and to applicable bankruptcy, insolvency, moratorium and other laws now or hereafter in effect affecting the rights of creditors generally;
(x) In addition to the legal opinions set forth above, such counsel shall indicate in such certificate letter that, nothing has come to the attention of counsel which would lead such counsel to believe that the Registration Statement or the Prospectus (in either case, as amended or supplemented, if amended or supplemented) contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; however, such counsel need not otherwise undertake to determine independently and, therefore, need not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus except to the extent set forth in clause (vi) above and such counsel need express no opinion with respect to the financial statements, schedules and other financial data contained in the Registration Statement and Prospectus. In rendering the foregoing opinion, such counsel may rely, as to any matters of fact upon which such opinion is predicated, on certificates and written statements of state officials and certificates and written statements of officers and representatives of the Company and other responsible persons, in each case to the extent deemed appropriate by such counsel. Copies of all such certificates shall be attached furnished to such certificatecounsel for the Underwriter on the Closing Date.
(f) On At the time this Agreement is executed and at the Closing Date, Xxxxxxxx, Alpren & Green shall have furnished to the Underwriter letters dated respectively as of the date of this Agreement and on as of the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and Date in form and substance satisfactory to the Underwriters and Underwriters’ CounselUnderwriter, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulationsthe Rules under the Act, and stating, as of such date stating in effect that: (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given i) in the Prospectus, as of a date not more than five (5) days prior to such date)their opinion, the conclusions and findings financial statements of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representativeincluding supporting schedules, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained examined by them included in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.Statement
Appears in 1 contract
Samples: Underwriting Agreement (Worldwide Entertainment & Sports Corp)
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters to purchase and pay for the Securities Shares as provided herein shall be subject to: (i) to the accuracy accuracy, as of the date hereof and the Closing Date and any later date on which Option Shares are to be purchased, as the case may be, of the representations and warranties of the Company herein containedand the Selling Stockholders herein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company and the Selling Stockholders of its their respective obligations hereunder, hereunder and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 2 P.M., Eastern TimeSan Francisco time, on the date following the date of this Agreement, or at such later time and date as shall have been be consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof you; and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus thereof shall have been issued; issued and no proceedings for the issuance of such an order that purpose shall have been initiated or, to the knowledge of the Company, either Selling Stockholder or threatened; all requests any Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, Statement or the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of Underwriters’ satisfaction' Counsel.
(b) The Underwriters shall not have reasonably determined, All corporate proceedings and advised the Company, that the Registration Statementother legal matters in connection with this Agreement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement form of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not and the registration, authorization, issue, sale and delivery of the Shares, shall have been any Material Adverse Change or any development involving a prospective Material Adverse Changereasonably satisfactory to Underwriters' Counsel, whether or not arising from transactions and Underwriters' Counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in the ordinary course of businessthis Section.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(hc) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date orDate, if earlieror any later date on which Option Shares are to be purchased, as the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto)case may be, there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of earnings, operations, shareholders’ equity, properties business or business prospects of the Company, taken as a whole, including but not limited to Company from that set forth in the occurrence of any fire, flood, storm, explosion, accident, act of war Registration Statement or terrorism or other calamity, the effect of whichProspectus that, in any such case described aboveyour reasonable judgment, is, in the reasonable judgment of the Underwriters, so is material and adverse as to make it and that makes it, in your reasonable judgment, impracticable or inadvisable to proceed with the sale public offering of Securities or Offering the Shares as contemplated herebyby the Prospectus.
(d) You shall have received on the Closing Date and on any later date on which Option Shares are to be purchased, as the case may be, the following opinion of LeClair Ryan, A Professional Corporation, counsel for the Cxxxxxx xnd the Selling Stockholders, dated the Closing Date or such later date on which Option Shares are to be purchased, addressed to the Underwriters and with reproduced copies or signed counterparts thereof for each of the Underwriters, to the effect that:
(i) The Underwriters shall have received Company has been duly incorporated and is validly existing as a lock-up agreement from each Lock-Up Party, duly executed by corporation in good standing under the applicable Lock-Up Party, in each case substantially in laws of the form attached as Annex IVCommonwealth of Virginia.
(jii) The Shares are registered Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus.
(iii) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus under the Exchange Act caption "Capitalization" as of the dates stated therein. The issued and outstanding shares of capital stock of the Company (including the Option Shares to be sold by the Selling Stockholders) have been duly and validly issued and are fully paid and nonassessable and, to such counsel's knowledge, have not been issued in violation of or subject to any preemptive right, co-sale right, registration right, right of first refusal or other similar right.
(iv) The Firm Shares or the Option Shares, as the case may be, to be issued by the Company pursuant to the terms of this Agreement have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable, and will not have been issued in violation of or subject to any preemptive right, co-sale right, registration right, right of first refusal or other similar right.
(v) The Company has the corporate power and authority to enter into this Agreement and to issue, sell and deliver to the Underwriters the Shares to be issued and sold by it hereunder.
(vi) This Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery by you, is a valid and binding agreement of the Company, enforceable in accordance with its terms, except insofar as indemnification provisions may be limited by applicable law and except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally or by general equitable principles.
(vii) The Registration Statement has become effective under the Act, and to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Act.
(viii) The Registration Statement and the Prospectus, and each amendment or supplement thereto (other than the financial statements, including supporting schedules, and financial data derived therefrom, as to which such counsel need express no opinion), as of the Closing Dateeffective date of the Registration Statement, complied as to form in all material respects with the Shares shall requirements of the Act and the applicable Rules and Regulations.
(ix) The information in the Prospectus under the caption "Description of Capital Stock," to the extent that it constitutes matters of law or legal conclusions, has been reviewed by such counsel and is a fair summary of such matters and conclusions; and the forms of certificates evidencing the Common Stock and filed as exhibits to the Registration Statement comply with the corporation law of the Commonwealth of Virginia.
(x) The description in the Registration Statement and the Prospectus of the articles of incorporation and bylaws of the Company and of statutes are accurate and fairly present the information required to be listed presented by the Act and admitted the applicable Rules and authorized for trading on Regulations.
(xi) To such counsel's knowledge, there are no agreements, contracts, leases or documents to which the Nasdaq Global Market Company is a party of a character required to be described or referred to in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement that are not described or referred to therein or filed as required.
(xii) The performance of this Agreement and satisfactory the consummation of the transactions herein contemplated (other than performance of the Company's indemnification obligations hereunder, concerning which no opinion need be expressed) will not (a) result in any violation of the Company's articles of incorporation or bylaws or (b) to such counsel's knowledge, result in a material breach or violation of any of the terms and provisions of, or constitute a default under, (1) any bond, debenture, note or other evidence of indebtedness, or any lease, contract, indenture, mortgage, deed of trust, loan agreement, joint venture or other agreement or instrument known to such action shall counsel to which the Company is a party or by which its properties are bound, (2) any applicable statute, rule or regulation known to such counsel or (3) any order, writ or decree known to such counsel of any court, government or governmental agency or body having jurisdiction over the Company or any of its properties or operations.
(xiii) No consent, approval, authorization or order of or qualification with any court, government or governmental agency or body having jurisdiction over the Company or any of its properties or operations is necessary in connection with the consummation by the Company of the transactions herein contemplated, except such as have been provided to obtained under the Underwriters. The Company shall have taken no action designed to terminate, Act or likely to have such as may be required under state or other securities or Blue Sky laws in connection with the effect of terminating, purchase and the registration distribution of the Shares under by the Exchange Underwriters.
(xiv) To such counsel's knowledge, there are no legal or governmental proceedings pending or threatened against the Company of a character required to be disclosed in the Registration Statement or the Prospectus by the Act or delisting the Rules and Regulations, other than those described therein.
(xv) To such counsel's knowledge, the Company is not presently (a) in material violation of its articles of incorporation or suspending bylaws or (b) in material breach of any applicable statute, rule or regulation known to such counsel or, to such counsel's knowledge, any order, writ or decree of any court or governmental agency or body having jurisdiction over the Shares from trading on Company or any of its properties or operations.
(xvi) To such counsel's knowledge, except as set forth in the Nasdaq Global MarketRegistration Statement and Prospectus, nor will no holders of Common Stock or other securities of the Company have received any information suggesting that registration rights with respect to securities of the Commission Company and, except as set forth in the Registration Statement and Prospectus, all holders of securities of the Company having rights known to such counsel to registration of such shares of Common Stock or other securities, because of the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection filing of the Registration Statement by the Company have, with respect to the fairness and reasonableness offering contemplated thereby, waived such rights or such rights have expired by reason of the underwriting terms and arrangements.
(l) 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 lapse of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations time following notification of the Company.
(m) The Company shall 's intent to file the Registration Statement or have furnished included securities in the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing Registration Statement pursuant to the Revised Cybersecurity Review Measuresexercise of and in full satisfaction of such rights.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters to purchase and pay for the Securities Shares, as provided herein herein, shall be subject to: (i) to the continuing accuracy of the representations and warranties of the Company herein contained, as of the date hereof and as of each of the Closing Date or and the Additional Option Closing Date, (ii) the absence from any certificatesif any, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel accuracy of the statements of officers of the Company made pursuant to this Section 7 of any misstatement or omission, (iii) the provisions hereof and to the performance by the Company of its obligations hereunder, hereunder and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become has been declared effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, Agreement or at such later date and time and date as shall have been be consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Actyou, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to each of the Closing Date and the actual time of the ClosingOption Closing Date, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings for the issuance of such an order purpose shall have been initiated instituted or threatened; all requests shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of counsel to the Underwriters’ satisfaction.
(b) The By the Effective Date, the Representatives shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters shall not have reasonably determined, and advised the Company, that as described in the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters No order suspending the sale of the Securities in any jurisdiction designated by you pursuant to Section 3(e) hereof shall have receivedbeen issued on or before either the Closing Date or the Option Closing Date, and no proceedings for that purpose shall have been instituted or, to the best of the Company’s knowledge, shall be contemplated.
(d) On the Closing Date the Company’s Common Stock, including the Securities, shall have been approved for listing on the Nasdaq Capital Market.
(e) The Representatives’ covenants with the Company, the Underwriters will not use, authorize the use of, referred to, or participate in the planning for the use of a “Free Writing Prospectus” as defined in Rule 405 of the Securities Act, which term includes use of any written information furnished by the SEC to the Company not incorporated by reference into the Registration Statement, without the prior written consent of the Company. Any such Free Writing Prospectus consented to by the Company is hereinafter referred to as an “Underwriter Free Writing Prospectus.”
(f) On the Effective Date, Closing Date and the Option Closing Date, if any, the Representatives shall have received the favorable opinion of Cozen O’Xxxxxx, counsel to the Company, dated such respective date, addressed to the Representatives and in previously agreed upon form and substance reasonably satisfactory to counsel to the Underwriters.
(g) On the Effective Date, the Closing Date and the Option Closing Date, if any, the Representatives shall receive the favorable opinion of _________________, counsel to the Company, dated such respective date addressed to the Representatives and in previously agreed upon form and substance reasonably satisfactory to counsel to the Underwriters as to PRC and Underwriters’ counsel Hong Kong law matters.
(h) The Company shall have obtained a five (5) year key man life insurance policy in the amount of $5 Million insuring the life of the Company’s president and chief executive officer.
(i) legal opinions from Xxxxxx Xxxxxxxx & RiegelsAt the time this Agreement is executed, Cayman Islands and at each of the Closing Date and the Option Closing Date, if any, you shall have received a letter, addressed to the Representatives and in form and substance satisfactory in all respects (including the non-material nature of the changes or decreases, if any, referred to in clause (iii) below) to you and to counsel to the Company dated Underwriters from JSW dated, respectively, as of the date of this Agreement and as of the Closing Date and addressed the Option Closing Date, if any:
(i) Confirming that they are independent accountants with respect to the UnderwritersCompany within the meaning of the Securities Act and the applicable Regulations and that they have not, during the periods covered by the financial statements included in the Prospectus, provided to the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act;
(ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for Stating that in their opinion the Company, dated as financial statements of the Closing Date Company included in the Registration Statement and addressed Prospectus comply as to form in all material respects with the Underwriters, applicable accounting requirements of the Securities Act and the published Regulations thereunder;
(iii) legal opinions from Xxx Xxx Law OfficesStating that, PRC legal counsel on the basis of a limited review which included a reading of the latest available unaudited interim financial statements of the Company (with an indication of the date of the latest available unaudited interim financial statements), a reading of the latest available minutes of the stockholders and board of directors and the various committees of the board of directors, consultations with officers and other employees of the Company responsible for financial and accounting matters and other specified procedures and inquiries, nothing has come to their attention which would lead them to believe that (a) the unaudited financial statements of the Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Regulations or are not fairly presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements of the Company included in the Registration Statement; (b) at a date not later than five days prior to the CompanyEffective Date, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Option Closing Date, as the case may be, there was any change in the capital stock or long-term debt of the Company, or any decrease in the stockholders’ equity of the Company as compared with amounts shown in the December ___, 2008, balance sheet included in the Registration Statement, other than as set forth in or contemplated by the Registration Statement, or, if there was any decrease, setting forth the amount of such decrease; and (iic) negative assurance letterduring the period from December __, addressed 2008, to a specified date not later than five days prior to the Underwriters and dated the Effective Date, Closing Date or any Additional Option Closing Date, as the case may be, there was any decrease in revenues, net earnings or net earnings per share of Common Stock, in each case as compared with the corresponding period in the immediately preceding year and as compared with the corresponding period in the immediately preceding quarter, other than as set forth in or contemplated by the Registration Statement or, if there was any such decrease, setting forth the amount of such decrease;
(iv) Setting forth, at a date not later than five days prior to the Effective Date, the amount of liabilities of the Company (including a break-down of commercial papers and notes payable to banks and related parties);
(v) Stating that they have compared specific dollar amounts, numbers of shares, percentages of revenues and earnings, statements and other financial information pertaining to the Company set forth in the Prospectus in each case to the extent that such amounts, numbers, percentages, statements and information may be derived from the general accounting records, including work sheets, of the Company and excluding any questions requiring an interpretation by legal counsel, with the results obtained from the application of specified readings, inquiries and other appropriate procedures (which procedures do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter and found them to be in agreement;
(vi) Stating that they have not, since the Company’s formation, brought to the attention of the Company’s management any reportable condition related to internal structure, design or operation, as defined in the Statement on Auditing Standards No. 60 “Communication of Internal Control Structure Related Matters Noted in an Audit,” in the Company’s internal controls; and
(vii) Statements as to such other matters incident to the transaction contemplated hereby as you may reasonably request.
(j) At each of the Effective Date, the Closing Date and the Company Option Closing Date, if any, the Representatives shall have furnished to such counsel such documents received a certificate of the Company signed by the President and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Officesthe Secretary or Assistant Secretary of the Company, PRC counsel to dated the UnderwritersEffective Date, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional the Option Closing Date, as the case may be, in form and substance satisfactory respectively, to the Representative.
effect that (di) The Underwriters shall have received certificates the Company has performed all covenants and agreements and complied with all conditions required by this Agreement to be performed or complied with by the Company prior to and as of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”)Effective Date, substantially in the form attached hereto as Annex I and dated as of the Closing Date, to or the effect that: Option Closing Date, as the case may be; (iii) the conditions set forth in subsection (aSection 4(h) of this Section 7 hereof have been satisfied, satisfied as of such date; (iiiii) as of the date hereof and as of Effective Date, the Closing Date and the Option Closing Date, as the case may be, the representations and warranties of the Company set forth in Section 2 hereof are accuratetrue and correct; (iv) they have carefully examined the Registration Statement and the Prospectus and, in their opinion, (iiiA) as of the Closing Effective Date, all agreementsthe 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, conditions and obligations in light of the Company to be performed or complied with hereunder on or prior thereto circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been duly performed set forth in a supplement or complied with, otherwise required an amendment to the Registration Statement or the Prospectus; and (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and and, to their knowledge, no proceedings therefor for that purpose have been initiated instituted or threatened by are pending under the CommissionSecurities Act. In addition, (vi) there are no pro forma or the Representatives will have received such other and further certificates of officers of the Company as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of businessRepresentatives may reasonably request.
(ek) At each of the Closing Date and the Option Closing Date, if any, the Underwriters Representatives shall have received a certificate of the Company signed by the Secretary or Assistant Secretary of the Company (the “Secretary’s Certificate”)Company, substantially in the form attached hereto as Annex II and dated the Closing Date or the Option Date, certifying: as the case may be, respectively, certifying (i) that each the copies of the Charter Bylaws and Bylaws is Certificate of Incorporation of the Company attached thereto are true and complete, has have not been modified and is are in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) all correspondence between the good standing of Company or its counsel and the CompanyCommission; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(fl) On the date of this Agreement Prior to and on each of the Closing Date and the Option Closing Date, the Underwriters if any, (i) there shall have received been no material adverse change or development involving a “comfort” letter from Xxxxxx Asia CPAs LLP (prospective material adverse change in the “Auditor Comfort Letter”) as condition or prospects of each such datethe business activities, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counselfinancial or otherwise, confirming that they are independent certified public accountants with respect to of the Company within from the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective latest dates as of which specified financial information such condition is given set forth in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered and Prospectus; (ii) no action suit or proceeding, at law or in equity, shall have been pending or threatened against the Company or any Initial Stockholder before or by such letterany court or federal or state commission, board or other administrative agency wherein an unfavorable decision, ruling or finding may materially adversely affect the business, operations, prospects or financial condition or income of the Company, except as set forth in the Registration Statement and Prospectus; (iii) no stop order shall have been issued under the Securities Act and no proceedings therefor shall have been initiated or threatened by the Commission; and (iv) the Registration Statement and the Prospectus and any amendments or supplements thereto shall contain all material statements which are required to be stated therein in accordance with the Securities Act and the Regulations and shall conform in all material respects to the requirements of the Securities Act and the Regulations, and neither the Registration Statement nor the Prospectus nor any amendment or supplement thereto shall contain any untrue statement of a material fact or omit to state any 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.
(gm) On the date of this Agreement and on the Closing Date, the Company shall have furnished delivered to the Representative, a certificate on behalf Representatives executed copies of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXXRepresentatives’ Warrants.
(hn) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given All proceedings taken in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed connection with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Partyauthorization, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially as herein contemplated shall be reasonably satisfactory in form and adversely affect or potentially materially substance to you and adversely affect to counsel to the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect has delivered to the Company’s proposed overseas listing pursuant Representatives the Lock-up Agreements referred to in Paragraph 2(gg).
(p) The Company shall have received notice that the Revised Cybersecurity Review MeasuresSecurities are eligible to be listed on the Nasdaq Capital Market as of the Effective Date.
Appears in 1 contract
Samples: Underwriting Agreement (Andatee China Marine Fuel Services Corp)
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters to purchase and pay for the Securities Firm Stock and the Additional Stock, as provided herein herein, and the obligation of the Representatives, individually and not as representatives of the several Underwriters, to purchase and pay for the Representatives' Warrants, each as provided herein, shall be subject to: (i) subject, in the discretion of the Representatives, to the continuing accuracy of the representations and warranties of the Company contained herein containedand in each certificate and document contemplated under this Agreement to be delivered to the Underwriters, as of the date hereof and as of the Closing Date (or the any Additional Closing Date, (ii) as the absence from any certificatescase may be), opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received under the Securities Act not later than 5:30 6:00 P.M., Eastern TimeNew York City local time, on the date of this Agreement, Agreement or at such later date and time and date as shall have been be consented to in writing by the Representatives, on or prior to the Closing Date, or any Additional Closing Date, as the case may be, no Stop Order shall have been issued and no proceeding shall have been initiated or threatened with respect to a Stop Order; and any request by the Commission for additional information shall have been complied with by the Company to the reasonable satisfaction of counsel for the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Actrequired, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof manner and a form of within the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to time period required by Rule 424(b) within under the applicable time period; andSecurities Act.
(i) At the Closing Date and any Additional Closing Date, at as the case may be, you shall have received the opinion of Gersten, Savage, Xxxxxxxxx & Xxxxxxxxxx, LLP, United Stated counsel for the Company, dated the date of delivery, addressed to the Underwriters, and in form and scope satisfactory to counsel for the Underwriters, with reproduced copies or signed counterparts thereof for each of the Underwriters.
(ii) At the Closing Date and any Additional Closing Date, as the case may be, you shall have received the opinion of XxXxxxxx Binch, Canadian counsel for the Company, dated the date of delivery, addressed to the Underwriters, and in form and scope satisfactory to counsel for the Underwriters, with reproduced copies or signed counterparts thereof for each of the Underwriters.
(c) On or prior to the Closing Date and any Additional Closing Date, as the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Packagecase may be, the Prospectus or any Issuer Free Writing Prospectus Underwriters shall have been issued; no proceedings furnished such information, documents, certificates, and opinions as they may reasonably require for the issuance purpose of such an enabling them to review the matters referred to in Section 7(b), and in order shall have been initiated to evidence the accuracy, completeness, or threatened; all requests satisfaction of any of the Commission for additional information (to be included in representations, warranties, covenants, agreements, or conditions herein contained, or as the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfactionRepresentatives may reasonably request.
(bd) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated At the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant and any amendments or supplements thereto shall contain all statements which are required to be stated therein in accordance with the Securities Act and the Regulations, and in all material respects conform to the Regulations which are not so includedrequirements thereof, and neither the Registration Statement nor the Prospectus nor any amendment or supplement thereto shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (viiii) subsequent to there shall have been, since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change no material adverse change, or any development involving a prospective Material Adverse Changematerial adverse change, whether in the business, properties, or condition (financial or otherwise), results of operations, capital stock, long-term or short-term debt, or general affairs of the Company or any Subsidiary from that set forth in the Registration Statement and the Prospectus, except changes which the Registration Statement and Prospectus indicate might occur after the date on which the Registration Statement becomes effective under the Securities Act, and neither the Company nor any Subsidiary shall have incurred any material liabilities or entered into any agreements not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially business other than as referred to in the form attached hereto as Annex II Registration Statement and dated the Closing DateProspectus, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) except as set forth in the good standing of the Company; and Prospectus, no litigation, arbitration, claim, governmental or other proceeding (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate formal or informal), or investigation shall be attached to such certificate.
pending, threatened, or in prospect (for any basis therefor) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning or any Subsidiary or any of the Act and all applicable Regulationstheir respective operations, and statingbusinesses, as of such date (orproperties, with respect or assets which would be required to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained be set forth in the Registration Statement and Prospectus (Statement, wherein an unfavorable decision, ruling, or finding would materially adversely affect the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the businessproperty, condition (financial or otherwise), results of operations, shareholders’ equityor general affairs of the Company or such Subsidiary, properties or prospects and (iv) the Stock be listed upon the Nasdaq SmallCap Market and the Exchange.
(e) At the Closing Date and any Additional Closing Date, as the case may be, you shall have received a certificate of the Chief Executive Officer and the Chief Financial Officer of the Company, taken dated the Closing Date or such Additional Closing Date, as a wholethe case may be, including but not limited to the occurrence effect, among other things, that (i) the conditions set forth in Sections 7(a) and 7(d) have been satisfied, (ii) as of any firethe date of this Agreement and as of the Closing Date or such Additional Closing Date, flood, storm, explosion, accident, act of war or terrorism or other calamityas the case may be, the effect representations and warranties of whichthe Company contained herein were and are accurate and correct in all material respects, and (iii) as of the Closing Date or such Additional Closing Date, as the case may be, the obligations to be performed by the Company hereunder on or prior to such time have been fully performed.
(f) At the time this Agreement is executed and at the Closing Date and any Additional Closing Date, as the case may be, you shall have received a letter, addressed to the Underwriters, and in any such case described aboveform and substance satisfactory to the Representatives, is, in the reasonable judgment with reproduced copies or signed counterparts thereof for each of the Underwriters, so material from Xxxxxxxx Xxxxxxxx Xxxxxxx, independent certified public accountants for the Company and adverse as each of the Subsidiaries, dated the date of delivery, in form and substance satisfactory to make it impracticable or inadvisable the Representatives and counsel to proceed the Underwriters.
(g) All proceedings taken in connection with the sale issuance, sale, transfer, and delivery of the Securities or Offering shall be satisfactory in form and substance to the Representatives and to counsel for the Underwriters, and the Underwriters shall have received from such counsel for the Underwriters the opinion, dated as contemplated herebyof the Closing Date and the Additional Closing Date, as the case may be, with respect to such of the matters set forth under Section 7(b), and with respect to such other related matters, as the Representatives may reasonably request.
(h) NASDR, upon review of the terms of the public offering of the Stock shall not have objected to the Underwriters' participation in such offering.
(i) The Underwriters Prior to or on the Closing Date, the Company shall have received a lock-up agreement from each Lock-Up Party, duly executed by entered into the applicable Lock-Up Party, in each case substantially in Financial Advisory Agreement and the form attached as Annex IVRepresentatives' Warrants with the Representatives.
(j) The Shares are registered under the Exchange Act and, as of Prior to or on the Closing Date, the Shares Company shall have provided to you copies of the agreements referred to in Section 2(r). Any certificate or other document signed by any officer of the Company and delivered to the Representatives or to counsel for the Underwriters shall be listed deemed a representation and admitted and authorized for trading on warranty by the Nasdaq Global Market and satisfactory evidence of such action shall have been provided Company hereunder to the Underwriters as to the statements made therein. If any condition to the Underwriters. The Company shall have taken no action designed ' obligations hereunder to terminate, be fulfilled prior to or likely to have at the effect of terminating, the registration of the Shares under the Exchange Act Closing Date or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Additional Closing Date, prevent as the issuance or sale case may be, is not so fulfilled, the Representatives may, on behalf of the Securities; and no injunction several Underwriters, terminate this Agreement or, if the Representatives so elect, in writing waive any such conditions which have not been fulfilled or order of any federal, state or foreign court shall have been issued that would, as of extend the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Companytime for their fulfillment.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters to purchase and pay for the Securities as provided herein shall be Firm Units hereunder are subject to: (i) the accuracy of the representations and warranties of the Company herein contained, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and (iv) each of the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M.4:00 p.m., Eastern TimeNew York City time, on the date of this Agreementhereof, or at such later date and time and date as shall have been be consented to in writing by the UnderwritersRepresentatives. If the Company shall have elected to rely upon Rule 430A under the Act, the The Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) under the Rules and Regulations within the applicable time periodperiod prescribed for such filing by the Rules and Regulations; and, at or prior all material required to be filed pursuant to Rule 433(d) under the Closing Date Rules and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus Regulations shall have been issuedfiled with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Rules and Regulations; no proceedings for if the issuance of such an order Partnership has elected to rely upon Rule 462(b) under the Rules and Regulations, the Rule 462(b) Registration Statement shall have been initiated or threatened; all requests become effective by 10:00 p.m., Washington, D.C. time, on the date of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfactionthis Agreement.
(b) The Underwriters You shall not have be reasonably determined, and advised the Company, satisfied that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to since the respective dates as of which information is given in the Registration Statement Statement, the Time of Sale Information and the Prospectus, (i) there has shall not have been any Material Adverse Change change in the capitalization of the Partnership or any development involving a prospective Material Adverse Change, whether or not arising from transactions material change in the indebtedness (other than in the ordinary course of business) of the Partnership, (ii) except as set forth in or contemplated by the Registration Statement, the Time of Sale Information or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Partnership 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 Partnership, (iii) no loss or damage (whether or not insured) to the property of the Partnership 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 Partnership Entities or any of their properties that is material to the Partnership 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 condition (financial or otherwise), business, management, results of operations or prospects of the Partnership Entities that makes it impractical or inadvisable in your judgment to proceed with the public offering or purchase of the Units as contemplated hereby.
(c) You shall have received on the Closing Date (and the Additional Closing Date, if any) an opinion of Xxxxx Xxxxx L.L.P., counsel to the Partnership, dated the Closing Date or Additional Closing Date, as the case may be, substantially to the effect set forth in Exhibit B hereto.
(d) You shall have received on the Closing Date or Additional Closing Date, as the case may be, an opinion of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date or Additional Closing Date, as the case may be, with respect to the issuance and sale of the Units, the Registration Statement and other related matters as you may reasonably request, and the Partnership and its counsel shall have furnished to your counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(e) At each of You shall have received letters addressed to you and dated the date hereof and the Closing Date or the Additional Closing Date, as the Underwriters shall have received a certificate case may be, from the firm of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”)Xxxxx Xxxxxxxx LLP, substantially in the form attached hereto as Annex II and dated the Closing Dateindependent certified public accountants, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all are in compliance with the applicable Regulationsrequirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of such the date hereof, the Closing Date or the Additional Closing Date, as applicable (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Preliminary Prospectus, as of a date not more than five (5) three days prior to such datethe date hereof, the Closing Date or the Additional Closing Date, as applicable), the conclusions and findings of such firm with respect to the financial information and other matters relating ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) You shall have received letters addressed to you and dated the date hereof and the Closing Date or the Additional Closing Date, as the case may be, from the firm of Xxxxx Xxxxxxxx LLP, independent certified public accountants, stating conclusions and findings of such firm with respect to the financial statements of Rivercrest Royalties, LLC and the statements of revenues and direct operating expenses of the Xxxxxxx Art Foundation, Trunk Bay Royalty Partners, Ltd., Oil Nut Bay Royalties, LP, Gorda Sound Royalties, LP and Bitter End Royalties, LP, RCPTX, Ltd. and French Capital Partners, Ltd.
(g) You shall have received letters addressed to you and dated the date hereof and the Closing Date or the Additional Closing Date, as the case may be, from the firm of Xxxxx Xxxxx Company, L.P., independent petroleum engineer, substantially in the forms heretofore approved by you.
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued by the Commission and no proceedings for that purpose shall be pending or, to the knowledge of the Xxxxxxx Parties, shall be threatened or contemplated by the Commission at or prior to the Closing Date or Additional Closing Date, as the case may be; (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Units under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending or, to the knowledge of the Xxxxxxx Parties, threatened or contemplated by the authorities of any jurisdiction; (iii) any request for additional information on the part of the staff of the Commission or any such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities; (iv) after the date hereof, no amendment or supplement to the Registration Statement covered or the Prospectus shall have been filed unless a copy thereof was first submitted to you and you did not object thereto in good faith; and (v) all of the representations and warranties of the Xxxxxxx Parties contained in this Agreement shall be 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) on and as of the date hereof and on and as of the Closing Date or Additional Closing Date, as the case may be, as if made on and as of the Closing Date or Additional Closing Date, as the case may be, and you shall have received a certificate, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Partnership (or such letterother officers as are acceptable to you) to the effect set forth in this Section 9(h) and in Section 9(b) hereof.
(gi) On The Partnership Parties shall not have failed in any material respect at or prior to the Closing Date or the Additional Closing Date, as the case may be, to have performed or complied with any of their agreements herein contained and required to be performed or complied with by them hereunder at or prior to the Closing Date or Additional Closing Date, as the case may be.
(j) The Partnership Parties shall have furnished or caused to have been furnished to you such further certificates and documents as you shall have reasonably requested.
(k) The Lock-Up Agreements from each of the persons listed on Schedule III hereto, delivered to the Representatives on or before the date of this Agreement Agreement, shall be in full force and effect.
(l) The Lock-Up Agreements from each of the applicable Directed Unit Offerees, delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect.
(m) At or prior to the effective date of the Registration Statement, you shall have received a letter from the Corporate Financing Department of FINRA confirming that such Department has determined to raise no objections with respect to the fairness or reasonableness of the underwriting terms and arrangements of the offering contemplated hereby.
(n) In connection with the sale of the Firm Units on the Closing Date, the Company Formation Transactions shall have furnished to the Representative, a certificate on behalf of the Company, dated been duly consummated at the respective dates of delivery thereof times and addressed to on the Underwritersterms contemplated by this Agreement, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and the Prospectus (and the “CFO Certificate”)Representatives shall have received such evidence that the Formation Transactions have been consummated as the Representatives may reasonably request. All such opinions, providing “management comfort” certificates, letters and other documents will be in compliance with respect to such information, the provisions hereof only if they are reasonably satisfactory in form and substance reasonably satisfactory to you and your counsel. The several obligations of the Underwriters to purchase Additional Units hereunder are subject to the Representative, substantially in satisfaction on and as of the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Additional Closing Date orof the conditions set forth in this Section 9, except that, if earlier, the dates as of which information Additional Closing Date is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of than the Closing Date, the Shares certificates, opinions and letters referred to in this Section 9 shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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, dated as of the Additional Closing Date and the opinions called for by paragraphs (c) and (d) shall be revised to reflect the sale of Additional Units. If any of the conditions hereinabove provided for in this Section 9 shall not have been satisfied when and as required by this Agreement, this Agreement may be terminated by you by notifying the Partnership of such termination in writing or by telegram at or prior to such Closing Date, prevent the issuance or sale but you shall be entitled to waive any of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Companysuch conditions.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 1 contract
Samples: Underwriting Agreement (Kimbell Royalty Partners, LP)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder, as to purchase and pay for the Securities as provided herein Shares to be delivered at each Time of Delivery, shall be subject to: subject, to the condition (iwhich condition may be waived by the Underwriters) the accuracy of the that all representations and warranties and other statements of the Company herein containedare, as of the date hereof at and as of such Time of Delivery, true and correct, the Closing Date or condition that the Additional Closing Date, (ii) statements of the absence from Company and its officers made in any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel certificate delivered pursuant to this Section 7 Agreement shall be, at and as of any misstatement or omissionsuch Time of Delivery, (iii) true and correct, the performance by condition that the Company shall have performed all of its obligations hereunderhereunder theretofore to be performed, and (iv) each of the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time periodperiod prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or Statement, any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure PackagePreliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings proceeding for the issuance of such an order that purpose shall have been initiated or threatenedthreatened by the Commission; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; and all requests for additional information on the part of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the UnderwritersRepresentatives’ reasonable satisfaction.;
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and LLP (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLPUS), counsel to the Underwriters, shall have furnished to the Representative its (i) written opinionUnderwriters such opinion or opinions, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates Time of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (orDelivery, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date)this Agreement, the conclusions and findings of such firm with respect to Registration Statement, the financial information Pricing Disclosure Package, the Prospectus and other related matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.request;
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Securities Firm Shares and the Additional Shares, as provided herein herein, shall be subject to: (i) to the accuracy of the representations and warranties of the Company herein contained, as of the date hereof and as of the Closing Date or (for purposes of this Section 7 "Closing Date" shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, (ii) if different, for the Additional Shares), to the absence from any certificates, opinions, written statements or letters furnished to the Underwriters Representatives or to Underwriters’ ' Counsel pursuant to this Section 7 of any misstatement or omission, (iii) to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder, and (iv) to each of the following additional terms and conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern TimeNew York time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If Representatives; if the Company shall have elected to rely upon Rule 430A under or Rule 434 of the ActRegulations, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof Section 5(a) hereof and a form of the Prospectus containing information relating to the description of the Securities Shares and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any post-effective amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus thereof shall have been issued; issued and no proceedings for the issuance of such an order therefor shall have been initiated or threatened; all requests of threatened by the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfactionCommission.
(b) The Underwriters shall not have reasonably determined, and advised At the Company, that the Registration StatementClosing Date, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters Representatives shall have receivedreceived (i) the written opinion of Xxxx & Xxxxx Professional Corporation, in form satisfactory counsel for the Company and the Selling Stockholders, dated the Closing Date addressed to the Underwriters in the form attached hereto as Annex I and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLPthe written opinion of S. Page Xxxx, U.S. legal in house counsel for the Company, dated as of the Closing Date and addressed to the Underwriters in the form attached hereto as Annex II.
(c) At the Closing Date, the Representatives shall have received (i) the written opinion of Goodmans LLP, Canadian counsel for the Company and its Subsidiaries, dated the Closing Date addressed to the Underwriters in the form attached hereto as Annex III and (ii) the written opinion of Xxxxxxx XxXxxxxx Stirling Scales, Canadian counsel for the Company and its Subsidiaries, dated the Closing Date addressed to the Underwriters in the form attached hereto as Annex IV.
(d) All proceedings taken in connection with the sale of the Firm Shares and the Additional Shares as herein contemplated shall be satisfactory in form and substance to the Representatives and to Underwriters' Counsel, and (iii) legal opinions the Underwriters shall have received from Xxx Xxx Law Offices, PRC legal counsel to the CompanyUnderwriters' Counsel a favorable opinion, dated as of the Closing Date. Each , with respect to the issuance and sale of the opinion shall provide assurance to parties that Shares, the legal aspects of Registration Statement and the transaction have been properly examined Prospectus and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, other related matters as the case Representatives may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may berequire, and the Company shall have furnished to such counsel Underwriters' Counsel such documents and information as such counsel they may reasonably request to enable for the purpose of enabling them to pass on upon such matters. XxxXxxxxx Law Offices, PRC counsel to .
(e) At the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters Representatives shall have received certificates a certificate of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”)Company, substantially in the form attached hereto as Annex I and dated as of the Closing Date, Date to the effect that: that (i) the conditions condition set forth in subsection (a) of this Section 7 have has been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 1 hereof are accurate, (iii) as of the Closing Date, Date all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has and the Subsidiaries have not sustained any material loss or interference with its businessestheir respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, Prospectus there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether except in each case as described in or not arising from transactions contemplated by the Prospectus, and (vi) there are no historical or pro forma financial statements which are required to be included in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially Registration Statement and Prospectus in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and accordance with Regulation S-X which have not been modified; (iii) the good standing of the Company; and (iv) included as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificateso required.
(f) On The Representatives shall have received a comfort letter from each of (i) Ernst & Young LLP, independent public accountants for the Company, and (ii) Singer Lewak Xxxxxxxxx and Xxxxxxxxx, LLP, independent public accountants for Video Update, at the time this Agreement is executed and at the Closing Date, dated as of the date of this Agreement and on as of the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such daterespectively, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel' counsel; provided, confirming however, that they are independent certified public accountants with respect to the Company within comfort letters delivered on the meaning of Closing Date shall use a "cut-off date" not earlier than the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letterhereof.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares capital stock or long-term debt of the Company or any change of the Subsidiaries or any change, or any development involving a prospective change, whether in or not arising from transactions in affecting the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equitybusiness, properties or prospects of the Company, Company and the Subsidiaries individually or taken as a whole, including but not limited to including, without limitation, the occurrence of any a fire, flood, storm, explosion, accident, act of war or terrorism explosion or other calamitycalamity at any of the properties owned or leased by the Company or any of its Subsidiaries, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale public offering or the delivery of Securities or Offering as the Shares on the terms and in the manner contemplated herebyin the Prospectus (exclusive of any supplement).
(ih) The Underwriters Representatives shall have also received a lock-up agreement from each Lock-Up Party, duly executed person who is a director of the Company and each stockholder as shall have been heretofore designated by the applicable Lock-Up PartyRepresentatives and listed on Schedule III hereto, in each case substantially in the form attached hereto as Annex IVV, and each such lock-up agreement shall be in full force and effect on the Closing Date.
(ji) The Shares are registered under the Exchange Act and, as of At the Closing Date, the Shares shall be listed and admitted and authorized have been approved for trading quotation on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligibleNASDAQ.
(kj) FINRA At the Closing Date, the NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(lk) No action The Company 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 complied with the provisions of Section 5(c) hereof with respect to the Closing Date, prevent furnishing of prospectuses on the issuance or sale next business day succeeding the date of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Companythis Agreement.
(ml) The Company shall have furnished the Underwriters and Underwriters’ ' Counsel with such other certificates, opinions or other documents as they may have reasonably requested.
(m) The Representatives shall have received on the Closing Date and the Additional Closing Date, if applicable, a certificate, dated the Closing Date or the Additional Closing Date, as applicable, and signed by the Attorney-in-Fact of each Selling Stockholder, to the effect that the representations and warranties of the Selling Stockholders contained in this Agreement are true and correct as of the Closing Date or the Additional Closing Date, as applicable, and that the Selling Stockholders have complied with all of the agreements and satisfied all of the conditions on their part to be performed or satisfied hereunder on or before the Closing Date or the Additional Closing Date, as applicable.
(n) The CSRC On the date hereof, the Company and the Selling Stockholders shall have concluded furnished for review by the CSRC Filings and published the filing results on January 2, 2024 in respect Representatives copies of the CSRC Filings on its website, Powers of Attorney and Custody Agreements executed by each of the Selling Stockholders and such notice of acceptance and/or filing results published not having otherwise been rejectedfurther information, withdrawn, revoked or invalidatedcertificates and documents as the Representatives may reasonably request.
(o) The Company is not required In the event the Underwriters exercise their option to apply for cybersecurity review purchase the Additional Shares, all of the conditions in this Section 7 must be satisfied in connection with the CAC with respect such Additional Shares on or prior to the Company’s proposed overseas listing Additional Closing Date. If any of the conditions specified in this Section 7 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 Representatives or to Underwriters' Counsel pursuant to this Section 7 shall not be satisfactory in form and substance to the Revised Cybersecurity Review MeasuresRepresentatives and to Underwriters' Counsel, all obligations of the Underwriters hereunder may be cancelled by the Representatives at, or at any time prior to, the Closing Date and the obligations of the Underwriters to purchase the Additional Shares may be cancelled by the Representatives at, or at any time prior to, the Additional Closing Date. Notice of such cancellation shall be given to the Company in writing, or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters Underwriter's obligation to purchase and pay for the Securities Refunding Bonds at Closing is subject to the performance by the Issuer of its obligations and agreements to be performed hereunder and under the Installment Agreement, the Resolution and the Indenture at or prior to Closing and the performance by the Company of the obligations to be performed by it under the Letter of Representation, the Installment Agreement, the Letter of Credit, the Letter of Credit Agreement between the Company and the Bank, dated as provided herein of October 1, 1995 and relating to the Refunding Bonds (the "Letter of Credit Agreement") and the Remarketing Agreement between the Company and the Remarketing Agent dated the Closing Date relating to the Refunding Bonds (the "Remarketing Agreement") at or prior to Closing and to the fulfillment of the following conditions at or prior to Closing:
(a) The Company shall be subject to: (i) have executed and the accuracy Issuer shall have accepted the Letter of Representation, and the representations and warranties of the Company Issuer herein contained, as and of the date hereof Company in the Letter of Representation shall be true and correct on and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and (iv) each of the following additional conditions.
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.;
(b) The Underwriters Each of the Indenture, the Installment Agreement, the Letter of Credit, the Remarketing Agreement and the Letter of Credit Agreement shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and each shall not have reasonably determinedbeen amended, and advised modified or supplemented since the Company, that date hereof except as may have been agreed to by the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.Underwriter;
(c) Neither the Issuer nor the Company shall be in default in the performance of any of its covenants and agreements herein or in the Letter of Representation, respectively;
(d) Subsequent to the execution of this Purchase Agreement, there shall not have been any downgrading of any rating by Moodx'x Xxxestors Service, Inc. or Standard & Poor's Ratings Group of any securities issued by the Company or of any bonds issued by the Issuer with respect to the Facilities or of the Refunding Bonds;
(e) The Underwriters Underwriter shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of :
(i) legal opinions from Xxxxxx Xxxxxxxx & RiegelsThe Final Official Statement signed on behalf of the Issuer by its Chairman, Cayman Islands counsel together with any amendments or supplements thereto to the Company dated as of the Closing Date and addressed to the Underwriters, Date;
(ii) legal opinions Opinions of McCaxx, Xxrkxxxxx & Xortxx X.X.P., Bond Counsel ("Bond Counsel"), dated the Closing Date, substantially in the forms attached hereto as Exhibit A-1 and negative assurance letter from DLA Piper UK LLPExhibit A-2;
(iii) An opinion, U.S. legal dated the Closing Date, of McCaxx, Xxrkxxxxx & Hortxx X.X.P. ("Issuer's Counsel"), counsel for the Issuer, substantially in the form attached hereto as Exhibit B;
(iv) An opinion, dated the Closing Date, of Milbank, Tweed, Hadlxx & XcClxx, xxecial counsel for the Company, substantially in the form attached hereto as Exhibit C;
(v) An opinion, dated as of the Closing Date and addressed to the UnderwritersDate, and (iii) legal opinions from Xxx Xxx Law Officesof Vinsxx & Xlkixx L.L.P., PRC legal special counsel to for the Company, substantially in the form attached hereto as Exhibit D;
(vi) An opinion, dated as of the Closing Date. Each , of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLPSidley & Austin, counsel to for the UnderwritersUnderwriter, shall have furnished to substantially in the Representative its form attached hereto as Exhibit E;
(ivii) written opinionA letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as from Arthxx Xxxexxxx LLP, independent certified public accountants of the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may beCompany, in form and substance satisfactory to the Representative.Underwriter and its counsel and covering the matters set forth in Exhibit F hereto;
(dviii) The Underwriters shall have received certificates A certificate, dated the Closing Date, signed by the Chairman of the Chief Executive Officer Issuer or other appropriate official satisfactory to the Underwriter, to the effect that each of the representations and Chief Financial Officer warranties of the Issuer set forth in this Purchase Agreement is true and correct on and as of the Closing Date as if made on and as of the Closing Date and that all agreements to be complied with and obligations to be performed by the Issuer hereunder and under the Installment Agreement, the Resolution and the Indenture on or prior to the Closing Date or as contemplated hereby or thereby have been complied with and performed;
(ix) A certificate, dated the Closing Date, signed by a Vice President or the Treasurer of the Company to the effect that, (A) the “Officers’ Certificate”representations and warranties contained in the Letter of Representation and the Remarketing Agreement or in any certificate delivered by the Company hereunder or thereunder are true and correct in all material respects on and as of the Closing Date as if made on and as of the Closing Date, (B) all agreements to be complied with and obligations to be performed by the Company pursuant to the Letter of Representation, the Remarketing Agreement and the Letter of Credit Agreement or as contemplated by the Letter of Representation, the Remarketing Agreement, the Letter of Credit Agreement, the Resolution, the Installment Agreement or the Indenture on or prior to the Closing Date have been complied with and performed and (C) there has been no material adverse change in the Company's financial condition or any adverse development concerning its business or assets which would result in a material adverse change in its prospective financial condition or results of operations from that described in or contemplated by the Official Statement or, if such change has occurred, full information with respect thereto;
(x) A certificate, satisfactory in form and substance to the Underwriter, of one or more duly authorized officers of the Trustee, dated the Closing Date, as to the due authentication and delivery of the Refunding Bonds by the Trustee under the Indenture;
(xi) Arbitrage certifications, satisfactory in form to the Underwriter and Underwriter's counsel, by the Company and the Issuer (which may be in the form of a single document);
(xii) Evidence, satisfactory to the Underwriter, of the ratings on the Refunding Bonds;
(xiii) Such additional certificates (including appropriate no litigation certificates), instruments or other documents as the Underwriter or Underwriter's counsel may reasonably request to evidence compliance with applicable law, the authority of the Trustee to act under the Indenture, and the due performance and satisfaction by the Company at or prior to such date of all agreements then to be performed and all conditions then to be satisfied by it, in connection with this Purchase Agreement, the Letter of Representation, the Remarketing Agreement, the Letter of Credit Agreement, the Installment Agreement, the Resolution and the Indenture, and to evidence that the interest on the Refunding Bonds is excludable from the gross income of the owners thereof for federal income tax purposes under the statutes, regulations, published rulings and court decisions on the Closing Date, and the status of the offering under the Securities Act, the 1935 Act and the Trust Act;
(xiv) An opinion, dated the Closing Date, of Chapxxx xxx Cutlxx, xxunsel for the Bank, with respect to the enforceability of the Letter of Credit and certain matters contained in the Official Statement, substantially in the form attached hereto as Annex I and dated as Exhibit G;
(xv) A copy of the Closing DateLetter of Credit, duly executed by the Bank and delivered to the Trustee, satisfactory in form and substance to the Underwriter; and
(xvi) A certificate, satisfactory in form and substance to the Underwriter, of one or more duly authorized officers of the Bank, to the effect that: that the information with respect to the Bank (iincluding Appendix B) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed contained or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered incorporated by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included reference in the Registration Official Statement and the Prospectus pursuant to the Regulations which are not so included, and (viiincluding any amendments or supplements thereto) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and completecorrect in all material respects and does not include, has and the Preliminary Official Statement as of its date did not been modified and is include, any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading in full force and effect; (ii) that the resolutions light of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificatecircumstances under which they were made.
(f) On At Closing there shall not have been any material adverse change in the date financial condition of this Agreement and on the Closing DateCompany or any adverse development concerning the business or assets of the Company which would result in a material adverse change in the prospective financial condition or results of operations of the Company from that described in the Official Statement which, in the Underwriters sole judgment of the Underwriter, makes it inadvisable to proceed with the sale of the Refunding Bonds;
(g) The Commission shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (issued an order under the “Auditor Comfort Letter”) as of each such date1935 Act, addressed to authorizing the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants Company's obligations with respect to the Company within Refunding Bonds, the meaning Installment Agreement, the Remarketing Agreement and the Letter of Credit Agreement; the Attorney General of the Act State of Texas shall have examined the Refunding Bonds and all applicable Regulationsthe records relating to their issuance, shall have certified as to their validity and stating, as shall have approved the Refunding Bonds; and the Refunding Bonds shall have been registered by the Comptroller of such date Public Accounts of the State of Texas;
(or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5h) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other All matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing DatePurchase Agreement, the Company Official Statement, the Refunding Bonds and the sale thereof, the Installment Agreement, the Remarketing Agreement, the Letter of Credit Agreement, the Letter of Credit, the Indenture, the Resolution, the Letter of Representation, and the consummation of the transactions contemplated hereby or thereby shall have furnished be satisfactory to and approved by the RepresentativeUnderwriter as of the Closing, a which approval shall not be unreasonably withheld. Any certificate signed by or on behalf of the Issuer or the Company and delivered at the Closing shall be a representation and warranty by the Issuer or the Company, dated as the respective dates of delivery thereof and addressed case may be, to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory Underwriter as to the Representative, substantially in the form attached hereto as Xxxxx XXX.statements made therein;
(hi) The Underwriter shall have received from the Company payment on the Closing Date by wire transfer of the Underwriter's fees (.397% of the principal amount of the Refunding Bonds) as set forth in Section 5 of the Letter of Representation; and
(j) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto)Official Statement, there shall not have been any change or decrease specified in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition letter required by subsection (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, e)(vii) which is, in the reasonable judgment of the UnderwritersUnderwriter, so material and adverse as to make it impracticable impractical or inadvisable to proceed with the sale offering or delivery of Securities or Offering the Refunding Bonds as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IVOfficial Statement.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 1 contract
Samples: Bond Purchase Agreement (Central Power & Light Co /Tx/)
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder are subject to purchase the accuracy, at and pay for as of the Securities date hereof and the First Closing Date (as provided herein shall be subject to: if made at the First Closing Date) and, with respect to the Optional Securities, the Option Closing Date (i) as if made at the accuracy Option Closing Date), of the representations and warranties of the Company herein containedand the Selling Stockholders contained herein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company and the Selling Stockholders of its their obligations hereunder, hereunder and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M.___ p.m., Eastern Timetime, on the date of this Agreement, or at such later time and date as the Representatives shall approve and all filings required by Rules 424, 430A and 433 under the Securities Act shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time periodmade; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus thereof shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests and any request of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the UnderwritersRepresentatives’ satisfaction.
(b) The Underwriters No Underwriter shall not have reasonably determined, and advised the Company, Company that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the UnderwritersRepresentatives’ reasonable opinion, is material, or omits to state a fact which, in the UnderwritersRepresentatives’ reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) On each Closing Date, the Representatives shall have received the favorable opinion of DLA Piper U.S. LLP, counsel for the Company, dated as of such Closing Date, the form of which is attached as Exhibit B.
(d) On each Closing Date, the Representatives shall have received the favorable opinion of ________, PRC counsel for the Company, dated as of such Closing Date, the form of which is attached hereto as Exhibit C.
(e) On each Closing Date the Representatives shall have received the favorable opinion of Loeb & Loeb LLP, counsel for the Underwriters, dated as of such Closing Date, in form and substance satisfactory to the Representatives.
(f) There shall have been furnished to the Representatives a certificate of the Company, dated as of each Closing Date and addressed to the Representatives, signed by the Chief Executive Officer and by the Chief Financial Officer of the Company to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct, as if made at and as of such Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for that purpose have been initiated or are pending or, to their knowledge, contemplated;
(iii) Any and all filings required by Rules 424, 430A, 430B and 430C under the Securities Act have been timely made;
(iv) The signers of said certificate have carefully examined the Registration Statement and the Disclosure Package and the Prospectus, and any amendments or supplements thereto, and such documents contain all statements and information required to be included therein; the Registration Statement or any amendment thereto does not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and the Disclosure Package and the Prospectus or any supplements thereto do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(v) Since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or the Disclosure Package and the Prospectus which has not been so set forth; and
(vi) Since the effective date of the Registration Statement, neither the Company nor any of its Subsidiaries shall have sustained any loss by strike, fire, flood, accident or other calamity (whether or not insured), or shall have become a party to or the subject of any litigation, which is material to the Company or its Subsidiaries taken as a whole, nor shall there have been a material adverse change in the general affairs, business, key personnel, capitalization, financial position, earnings or net worth of the Company and its Subsidiaries, whether or not arising in the ordinary course of business, which loss, litigation or change, in the Representatives’ judgment, shall render it inadvisable to proceed with the delivery of the Securities.
(cg) On the date hereof, and on each Closing Date, the Representatives shall have received from UHY, independent public or certified public accountants for the Company, a letter dated the date hereof addressed to the Representatives, on behalf of the several Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountant’s “comfort letters” to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement and the Prospectus (and the Representatives shall have received an additional five conformed copies of such accountants’ letter for each of the several Underwriters).
(h) The Securities and the Common Stock reserved for issuance under the Underwriter Warrants shall have been duly authorized for listing on the [Nasdaq Capital Market].
(i) The “lock-up” agreements between the Representatives and the stockholders, officers and directors of the Company listed on Schedule III, delivered to the Representatives on or before the date hereof, shall be in full force and effect on each Closing Date.
(j) By the effective date of the Offering, the Underwriters shall have received, in form satisfactory received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Registration Statement.
(k) On or before each Closing Date, the Representatives and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the CompanyUnderwriters shall have received such information, certificates, agreements, opinions and other documents as they may reasonably require.
(l) On the Option Closing Date, the Representatives shall have received the favorable opinion, dated as of the Option Closing Date Date, of counsel for the Selling Stockholders, in form and addressed substance satisfactory to counsel for the Underwriters, to the effect set forth in Exhibit D hereto and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal to such further effect as counsel to the CompanyUnderwriters may reasonably request.
(m) The Representatives shall have received a certificate of an Attorney-in-Fact on behalf of each Selling Stockholder, dated as of the Option Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its effect that (i) written opinion, addressed the representations and warranties of each Selling Stockholder contained in Section 2 hereof are true and correct in all respects with the same force and effect as though made at and as of the Option Closing Date and (ii) each Selling Stockholder has complied in all material respects with all agreements and all conditions on its part to be performed under this Agreement at or prior to the Option Closing Date.
(n) On or before each Closing Date, the Representatives and counsel for the Underwriters shall have received such information, certificates, agreements, opinions and dated other documents as they may reasonably require. All such opinions, certificates, letters and documents shall be in compliance with the provisions hereof only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Company shall furnish the Representatives with such conformed copies of such opinions, certificates, letters and other documents as the Representatives shall reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as required by this Agreement, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the First Closing Date or any Additional the Option Closing Date, as the case may be, and (ii) negative assurance letter, addressed to by the Representatives. Any such cancellation shall be without liability of the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in Notice of such certificate cancellation shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect given to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminatewriting, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act by telegraph or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligibletelephone and confirmed in writing.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder, as to purchase and pay for the Securities as provided herein Shares to be delivered at each Time of Delivery, shall be subject to: (i) subject, in their discretion, to the accuracy of the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein containedare, at and as of such Time of Delivery, true and correct, the date hereof condition that the statements of the Company and its officers and of each of the Selling Stockholders made in any certificate delivered pursuant to this Agreement shall be, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of their respective obligations hereunder theretofore to be performed, and the following additional conditions; provided that the conditions to be satisfied by a Selling Stockholder shall only be required to be satisfied at and as of the Closing Date or Time of Delivery of Optional Shares to be sold by such Selling Stockholder (except for the Additional Closing Datecondition set forth in Section 7(j), (ii) the absence from any certificates, opinions, written statements or letters furnished which shall be required to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 be satisfied at and as of any misstatement or omission, (iii) the performance by the Company each Time of its obligations hereunder, and (iv) each of the following additional conditions.Delivery):
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time periodperiod prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or Statement, any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure PackagePreliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings proceeding for the issuance of such an order that purpose shall have been initiated or threatenedthreatened by the Commission; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; and all requests for additional information on the part of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ Canaccord Xxxxx Inc.’s reasonable satisfaction.;
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law Xxxxxxx Procter LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinionUnderwriters such opinion or opinions, addressed dated such Time of Delivery, with respect to this Agreement, the Registration Statement, the Pricing Disclosure Package, the Prospectus and other related matters as the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Officesrequest;
(c) Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP, PRC counsel to the UnderwritersCompany, shall have furnished to the Representative its Underwriters their written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may besuch Time of Delivery, in form and substance reasonably satisfactory to the Representative.Underwriters, with respect to the matters set forth in Annex I hereto;
(d) The Underwriters Xxxxxx and Xxxx LLP, counsel to the Selling Stockholders, shall have received certificates furnished to the Underwriters their written opinion with respect to each of the Chief Executive Officer Selling Stockholders for whom they are acting as counsel, dated such Time of Delivery, in form and Chief Financial Officer substance reasonably satisfactory to the Underwriters, with respect to the matters set forth in Annex II hereto;
(e) On the date hereof and also at each Time of Delivery, Xxxxxx & Kliegman LLP, Xxxxxx and Xxxxxxx, L.L.P. and Friedberg, Xxxxx and Co., PC, shall each have furnished to the Company (Underwriters a letter or letters, dated the “Officers’ Certificate”)respective date of delivery thereof, substantially in form and substance reasonably satisfactory to the form attached hereto as Annex I and dated as of the Closing DateUnderwriters, to the effect that: set forth in Annex III hereto;
(f) Leser, Hunter, Taubman & Taubman, special counsel to the Company, shall have furnished to the Underwriters their written opinion, dated such Time of Delivery, in form and substance reasonably satisfactory to the Underwriters;
(i) Neither the conditions set forth in subsection (a) Company nor any of this Section 7 its subsidiaries shall have been satisfied, (ii) as sustained since the date of the date hereof and as of latest audited financial statements included in the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained Pricing Prospectus any material loss or interference with its businessesbusiness from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated decree, otherwise than as set forth or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included contemplated in the Registration Statement and the Prospectus pursuant to the Regulations which are not so includedPricing Prospectus, and (viiii) subsequent to since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares capital stock (other than issuances of Common Stock pursuant to Company stock option and stock purchase plans described in the Registration Statement and the Pricing Prospectus) or long-term debt of the Company or any material adverse change or development involving a change, whether or not arising from transactions in the ordinary course of general affairs, business, in the businessassets, condition (management, financial position, stockholders’ equity or otherwise), results of operations, shareholders’ equity, properties or prospects operations of the Company, Company and its subsidiaries taken as a whole, including but not limited to otherwise than as set forth or contemplated in the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamityPricing Prospectus, the effect of which, in any such case described abovein clause (i) or (ii), is, is in the reasonable sole judgment of the Underwriters, Canaccord Xxxxx Inc. so material and adverse as to make it impracticable or inadvisable to proceed with the sale public offering or the delivery of Securities the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(h) On or Offering as after the date hereof there shall not have occurred any of the following: (i) additional material governmental restrictions, not in force and effect on the date hereof, shall have been imposed upon trading in securities generally or minimum or maximum prices shall have been generally established on the New York Stock Exchange, the Nasdaq Capital Market, the American Stock Exchange or in the over-the-counter market by the NASD, or trading in securities generally shall have been suspended on the New York Stock Exchange, the Nasdaq Capital Market, the American Stock Exchange or in the over the counter market by the NASD, or a general banking moratorium shall have been established by federal or New York authorities, (ii) a suspension or material limitation in trading in securities generally on the Nasdaq Capital Market, (iii) a suspension or material limitation in trading in the Company’s securities on the Nasdaq Capital Market, (iv) an outbreak of major hostilities or other national or international calamity or any substantial change in political, financial or economic conditions shall have occurred or shall have accelerated or escalated to such an extent, as, in the sole judgment of Canaccord Xxxxx Inc., to affect materially and adversely the marketability of the Shares or (v) there shall be any action, suit or proceeding pending or threatened, or there shall have been any development or prospective development involving particularly the business or properties or securities of the Company or any of its subsidiaries or the transactions contemplated hereby.by this Agreement, which, in the sole judgment of Canaccord Xxxxx Inc., has materially and adversely affected the Company’s business or earnings and makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus; provided that in the case of any threatened action, suit or proceeding or any prospective development under subparagraph (v), Canaccord Xxxxx Inc. must have a reasonable basis for concluding that such threatened action, suit or proceeding or prospective development has materially and adversely affected the Company’s business or earnings and that it is impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(i) The Shares to be sold at such Time of Delivery shall have been accepted for quotation, subject to notice of issuance, on the Nasdaq Capital Market System;
(j) Each director and executive officer of the Company, in their capacities as such, shall have executed and delivered to the Underwriters agreements in which, and each Selling Stockholder and holder of the Company’s Series C Convertible Preferred Stock shall be bound by an agreement with the Company that may be enforced by the Underwriters pursuant to which, such holder undertakes, for 90 days after the date of the Prospectus, subject to certain exceptions stated therein, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of any shares of Common Stock, or any securities convertible into or exchangeable for, or any rights to purchase or acquire, shares of Common Stock, without the prior written consent of Canaccord Xxxxx Inc.; notwithstanding the foregoing, if (1) during the last 17 days of the 90-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day period, then, subject to certain exceptions stated therein, the restrictions imposed above shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event;
(k) The Underwriters shall have received a lock-up agreement from on and as of each Lock-Up PartyTime of Delivery, duly executed by as the applicable Lock-Up Partycase may be, satisfactory evidence of the good standing of the Company and its subsidiaries in their respective jurisdictions of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case substantially in writing or any standard form of telecommunication from the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence appropriate governmental authorities of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.jurisdictions;
(l) 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 each Time of Delivery, as the Closing Datecase may be, prevent the issuance or sale of the SecuritiesShares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of each Time of Delivery, as the Closing Datecase may be, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.Shares; and
(m) The Company and the Selling Stockholders shall have furnished or caused to be furnished to the Underwriters at such Time of Delivery certificates of officers of the Company, in their capacities as such, and Underwriters’ Counsel with of the Selling Stockholders, respectively, satisfactory to Canaccord Xxxxx Inc., as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein, at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders, respectively, of all of their obligations hereunder to be performed at or prior to such Time of Delivery, and as to such other certificatesmatters as the Underwriters may reasonably request, opinions or documents as they may have reasonably requested.
(n) The CSRC and the Company shall have concluded furnished or caused to be furnished certificates as to the CSRC Filings matters set forth in subsections (a) and published the filing results on January 2, 2024 in respect (f) of the CSRC Filings on its websitethis Section, and as to such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidatedother matters as Canaccord Xxxxx Inc. may reasonably request.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Securities as provided herein shall be Notes under this Agreement are subject to: (i) the accuracy of the representations and warranties of the Company herein contained, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 satisfaction of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and (iv) each of the following additional conditions.:
(a) The Registration Statement shall have become become, and shall remain, effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time Agreement and date as shall have been consented to in writing by through the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, Closing Date; the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(bSection 4(a)(iv) within the applicable time periodhereof; and, at or prior to the Closing Date and the actual time of the ClosingDate, no stop order suspending the effectiveness of of, or preventing the use of, the Registration Statement or any part thereofpost-effective amendment thereto, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Preliminary Prospectus, any Issuer Free Writing Prospectus or otherwisethe Prospectus shall have been issued and no proceeding for that purpose or pursuant to Rule 401(g)(2) or Section 8A of the Securities Act against the Company or related to the Offering shall have been initiated or, to the Company’s knowledge, threatened by the Commission. The Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of a Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for additional information shall have been complied with to the Underwriters’ satisfactionreasonable satisfaction of the Representative.
(b) The Underwriters All the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct on the date hereof and on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(c) At or after the Applicable Time, there shall not have reasonably determinedbeen any downgrading, nor shall any notice have been given of any intended or potential downgrading in the rating accorded any of the Company’s securities by any “nationally recognized securities rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act, or any public announcement that any such organization has under surveillance or review its rating of any such securities (other than an announcement with positive implications of a possible upgrading, and advised no implication of a possible downgrading of such rating).
(i) Since the Company, that date of the latest balance sheet included in the Registration Statement, the General Pricing Disclosure Package and the Prospectus, there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the business prospects, financial condition or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, except as otherwise described in the Registration Statement, the Pricing Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(cii) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date Date, the obligations of the Company to be performed hereunder on or prior thereto have been duly performed, (iii) since the date of the latest balance sheet included in the Registration Statement, the Pricing Disclosure Package and addressed the Prospectus, there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the capital stock or in the long-term debt of the Company from that set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus, except as otherwise described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (iv) the Company and its subsidiaries shall have no liability or obligation, direct or contingent, which is material to the UnderwritersCompany and its subsidiaries, taken as a whole, other than those in the Registration Statement, the Pricing Disclosure Package and the Prospectus, and (v) on the Closing Date you shall have received a certificate dated the Closing Date, signed by Xxxxxx X. Xxxxxxx, in his capacity as President and Chief Executive Officer, and by Xxxxx X. XxXxxx, in his capacity as Executive Vice President and Chief Financial Officer of the Company, confirming the matters set forth in paragraphs (a), (iib), (c) legal opinions and (d) of this Section 6.
(e) At the Closing Date you shall have received the written opinion and negative assurance letter from DLA Piper UK of Xxxxxxxx & Worcester LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and in form and substance reasonably satisfactory to the Underwriters and Underwriters’ Counsel.
(f) At the Closing Date you shall have received the written opinion and negative assurance of Xxxxxx X. Xxxxxxxx, Esq., General Counsel for the Company, dated as of the Closing Date, addressed to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On At the date Closing Date you shall have received the written opinion of this Agreement Gesmer Xxxxxxxxx LLP, special Connecticut counsel for U.S. Bank National Association, the Owner Trustee of Iron Mountain Statutory Trust – 1998, Iron Mountain Statutory Trust – 1999 and on Iron Mountain Statutory Trust – 2001 (collectively, the “Connecticut Guarantors”; each of the Guarantors that is not a Connecticut Guarantor is referred to herein as a “Delaware Guarantor” and, collectively, the “Delaware Guarantors”), dated the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained Underwriters in the Registration Statement form attached hereto as Annex III and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXXUnderwriters and Underwriters’ Counsel.
(h) The Underwriters shall have received on the Closing Date the written opinion and negative assurance letter of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, as to such matters as the Underwriters shall reasonably request.
(i) The Underwriters shall have received a letter on and as of the date of this Agreement (the “initial letter”), in form and substance satisfactory to you, from Deloitte & Touche LLP, the independent registered public accounting firm of the Company, with respect to the financial statements and certain financial information contained or referred to in the Registration Statement, the Pricing Disclosure Package and the Prospectus and a letter on and as of the Closing Date, in form and substance satisfactory to you, from Deloitte & Touche LLP confirming the information contained in the initial letter.
(j) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) Statement, the Pricing Disclosure Package and the Prospectus (exclusive of any amendment or supplement theretothereto after the date hereof), there shall not have been any change in the Ordinary Shares capital stock or long-term debt of the Company or any change of its subsidiaries or any change, or any development involving a prospective change, whether in or not arising from transactions in affecting the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equitybusiness, properties or prospects of the Company, Company and its subsidiaries taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the UnderwritersRepresentative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale public offering or the delivery of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially Notes on the terms and in the form attached as Annex IV.
manner contemplated in the Prospectus (j) The Shares are registered under the Exchange Act and, as exclusive of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligiblesupplement).
(k) FINRA The Company shall have confirmed that it has not raised any objection complied with the provisions of Section 4(a)(iv) hereof with respect to the fairness and reasonableness furnishing of Prospectuses on the underwriting terms and arrangementsnext business day succeeding the date of this Agreement.
(l) No action shall have been taken and no statute, rule, regulation On or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of prior to the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court DTC shall have been issued that would, as of accepted the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the CompanyNotes for clearance.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or other documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect . If any of the CSRC Filings on its websiteconditions specified in this Section 6 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 you or to Underwriters’ Counsel pursuant to this Section 6 shall not be in all material respects reasonably satisfactory in form and substance to you and to Underwriters’ Counsel, all obligations of the Underwriters hereunder may be cancelled by you at, or at any time prior to, the Closing Date. Notice of such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect cancellation shall be given to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review MeasuresCompany in writing, or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters to purchase and pay for the Securities Units, as provided herein herein, shall be subject to: (i) to the accuracy of the representations and warranties of the Company herein containedaccuracy, as of the date hereof and as of the Closing Date or (and, if applicable, the Additional Option Closing Date), (ii) of the absence from any certificatesrepresentations and warranties of the EVEP Parties contained herein, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company EVEP Parties of its their covenants and obligations hereunder, and (iv) each of to the following additional conditions.:
(a) The Registration Statement and all post-effective amendments thereto shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M.p.m., Eastern TimeNew York time, on the date hereof, or, with the consent of this Agreementthe Underwriters, at a later date and time, not later than 1:00 p.m., New York time, on the first business day following the date hereof, or at such later date and time as may be approved by the Underwriters; if the Partnership has elected to rely on Rule 462(b) of the 1933 Act Rules and date as Regulations, the Abbreviated Registration Statement shall have been consented to in writing become effective not later than the earlier of (i) 10:00 p.m. New York time, on the date hereof, or (ii) at such later date and time as may be approved by the Underwriters. If the Company shall have elected to rely upon All filings required by Rule 424 and Rule 430A under of the Act, the Prospectus 1933 Act Rules and Regulations shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no made. No stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Permitted Free Writing Prospectus shall have been issued; issued and no proceedings proceeding for the issuance of such an order that purpose shall have been initiated or threatened; all requests or, to the knowledge of the Commission Partnership or any Underwriter, threatened or contemplated by the SEC, and any request of the SEC for additional information (to be included in the Registration Statement, Statement or the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Underwriters’ satisfaction.
(b) The Underwriters No Underwriter shall not have reasonably determined, and advised the CompanyPartnership on or prior to the Closing Date (and, if applicable, the Option Closing Date), that the Registration Statement, the General Disclosure Package any Preliminary Prospectus or the Prospectus, any Permitted Free Writing Prospectus or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, thereto contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, opinion of the Underwriters (upon the advice of counsel) is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, opinion of the Underwriters (upon the advice of counsel) is material and is required to be stated therein or is necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading.
(c) The On the Closing Date (and, if applicable, the Option Closing Date), the Underwriters shall have receivedreceived the opinion of Hxxxxx and Bxxxx, LLP, counsel for the Partnership, addressed to them and dated the Closing Date (and, if applicable, the Option Closing Date), in form and substance reasonably satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and effect set forth on Exhibit A hereto.
(iiid) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of On the Closing Date. Each of , the Underwriters shall have received the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws[local counsel], regulations, and contractual requirements A copy of such opinion shall have been provided opining as to the Underwriters with consent from such laws of Ohio, [local counsel. VCL Law LLP], counsel opining as to the Underwriterslaws of West Virginia and [local counsel], shall have furnished opining as to the Representative its (i) written opinionlaws of Louisiana, addressed to the Underwriters and dated the Closing Date or any Additional (and, if applicable, the Option Closing Date), in form and substance reasonably satisfactory to the Underwriters, to the effect set forth on Exhibits B-1, B-2 and B-3 hereto.
(e) The Underwriters shall have received on the Closing Date (and, if applicable, the Option Closing Date), from Vxxxxx & Exxxxx L.L.P., counsel to the Underwriters, such opinion or opinions, dated the Closing Date (and, if applicable, the Option Closing Date) with respect to such matters as the case Underwriters may bereasonably require; and the EVEP Parties shall have furnished to such counsel such documents as they reasonably request for the purposes of enabling them to review or pass on the matters referred to in this Section 7 and in order to evidence the accuracy, completeness and satisfaction of the representations, warranties and conditions herein contained.
(iif) negative assurance letterAt the time of execution of this Agreement, the Underwriters shall have received from Deloitte & Touche LLP a letter or letters, in form and substance reasonably satisfactory to the Underwriters, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as date hereof and covering the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, matters described in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached Exhibit C hereto as Annex I and dated as of the Closing Date, to the effect that: including (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all are in compliance with the applicable Regulations, requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of such the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Registration Statement, the Prospectus, any Preliminary Prospectus and any Permitted Free Writing Prospectuses, as of a date not more than five (5) days prior to the date hereof), the conclusions and findings of such datefirm with respect to the various financial information in the Registration Statement, the Prospectus, any Preliminary Prospectus and any Permitted Free Writing Prospectuses and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(g) With respect to the letter or letters of Deloitte & Touche LLP referred to in the preceding paragraph and delivered to the Underwriters concurrently with the execution of this Agreement (the “initial letters”), the Partnership shall have furnished to the Underwriters a letter (the “bring-down letter”) of such accountants, in form and substance reasonably satisfactory to the Underwriters, addressed to the Underwriters and dated the Closing Date (or if applicable, the Option Closing Date) (i) confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Registration Statement, the Prospectus, any Preliminary Prospectus and any Permitted Free Writing Prospectuses, as of a date not more than five 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 relating to the Registration Statement covered by such letterthe initial letters and (iii) confirming in all material respects the conclusions and findings set forth in the initial letters.
(gh) On At the date time of execution of this Agreement and on the Closing DateAgreement, the Company Underwriters shall have furnished to the Representativereceived from Cxxxxx, Gxxxxxxxx & Associates, Inc. a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such informationletter, in form and substance reasonably satisfactory to the RepresentativeUnderwriters, substantially addressed to the Underwriters and dated the date hereof covering the matters described in Exhibit D.
(i) With respect to the letter of Cxxxxx, Gxxxxxxxx & Associates, Inc. referred to in the form attached hereto as Xxxxx XXXpreceding paragraph and delivered to the Underwriters concurrently with the execution of this Agreement, the Partnership shall have furnished to the Underwriters a letter of such reserve engineers, addressed to the Underwriters and dated each of the Closing Date and the Option Closing Date, if any, confirming in all material respects covering the matters in the letter referred to in the preceding paragraph.
(hj) Subsequent Except as set forth in the Registration Statement, the Prospectus and the Disclosure Package, (i) none of the Partnership Entities shall have sustained since the date of the latest audited financial statements included in the Registration Statement and in the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order, investigation or decree; and (ii) subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the respective dates as of which such information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of or any amendment or supplement thereto), none of the Partnership Entities shall have incurred any liability or obligation, direct or contingent, or entered into any transactions, and there shall not have been any change in the Ordinary Shares capitalization or short-term or long-term debt of the Company Partnership Entities or any change change, or any development involving or which might reasonably be expected to involve a change, whether or not arising from transactions prospective change in the ordinary course of business, in the business, condition (financial or otherwiseother), net worth, partners’ or members’ equity, business, affairs, management, prospects, results of operations, shareholders’ equity, properties operations or prospects cash flow of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamityPartnership Entities, the effect of which, in any such case described abovein clause (i) or (ii), is, is in the reasonable judgment of the Underwriters, Underwriters so material and or adverse as to make it impracticable or inadvisable to proceed with the sale public offering or the delivery of Securities or Offering as the Units being delivered on such Closing Date (and, if applicable, the Option Closing Date) on the terms and in the manner contemplated herebyin the Prospectus.
(k) There shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NASDAQ Global Market, or the establishing on such market by the SEC or by such market of minimum or maximum prices which are not in force and effect on the date hereof; (ii) a suspension or material limitation in trading in the Partnership’s securities on the NASDAQ Global Market or the establishing on such market by the SEC or by such market of minimum or maximum prices which are not in force and effect on the date hereof, (iii) a general moratorium on commercial banking activities declared by either federal or applicable state authorities; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, which in the judgment of the Underwriters makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Units in the manner contemplated in the Prospectus; or (v) any calamity or crisis, change in national, international or world affairs, act of God, change in the international or domestic markets, or change in the existing financial, political or economic conditions in the United States or elsewhere, the effect of which on the financial markets of the United States is such as to make it in the judgment of the Underwriters impracticable or inadvisable to proceed with the public offering or the delivery of the Units in the manner contemplated in the Prospectus.
(l) The Underwriters shall have received a lock-up agreement from each Lock-Up Partycertificates, duly executed dated the Closing Date (and, if applicable, the Option Closing Date) and signed by chief executive officer and the applicable Lock-Up Partychief financial officer, in their capacities as such, (or persons holding similar positions, as applicable) of each case substantially in of the form attached as Annex IV.EVEP Parties, stating that:
(ji) The Shares are registered under the Exchange Act andconditions set forth in Section 7(a) have been fully satisfied;
(ii) such EVEP Party has examined the Registration Statement, the Prospectus, the Disclosure Package and any amendment or supplement thereto, as well as each electronic roadshow used in connection with the offering, and (A) nothing has come to such EVEP Party’s attention that would lead it to believe that, as of the Closing Effective Date, the Shares shall Registration Statement included any untrue statement of a material fact or omitted to state material fact required to be listed stated therein or necessary to make the statements therein not misleading, and admitted as of its issue date and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date (and, if applicable, the Option Closing Date), prevent the issuance Prospectus, the Disclosure Package and any amendment or sale of supplement thereto, as well as each electronic roadshow used in connection with the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that wouldoffering, as of their respective effective, issue or filing dates, included any untrue statement of a material fact or omitted to state 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, there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or the Prospectus which has not been so set forth;
(iii) all representations and warranties made herein by such EVEP Party are true and correct at such Closing Date, prevent with the issuance same effect as if made on and as of such Closing Date; and all agreements herein to be performed or sale of complied with by such EVEP Party on or prior to such Closing Date have been duly performed and complied with by such EVEP Party;
(iv) no event contemplated by Section 7(g) has occurred; and
(v) covering such other matters as the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the CompanyUnderwriters may reasonably request.
(m) The Company EVEP Parties shall not have failed, refused, or been unable, at or prior to the Closing Date (and, if applicable, the Option Closing Date) to have performed any agreement on their part to be performed or any of the conditions herein contained and required to be performed or satisfied by them at or prior to such Closing Date.
(n) The Partnership shall have furnished to the Underwriters and Underwriters’ Counsel with at the Closing Date (and, if applicable, the Option Closing Date) such other further information, opinions, certificates, opinions or letters and documents as they the Underwriters may have reasonably requested.
(no) The CSRC NASDAQ Global Market shall have concluded approved the CSRC Filings and published the filing results on January 2Units for quotation, 2024 in respect of the CSRC Filings on its website, and such subject only to official notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidatedissuance.
(op) The Company is Underwriters shall have received duly and validly executed letter agreements referred to in Section 6(a)(xiii) hereof.
(q) The Underwriters shall have received evidence satisfactory to them that each of the Transactions shall have occurred or will occur as of the Closing Date, in each case as described in the Prospectus without modification, change or waiver, except for such modifications, changes or waivers as have been specifically identified to the Underwriters and which, in the judgment of the Underwriters, do not required make it impracticable or inadvisable to apply for cybersecurity review proceed with the CAC offering and delivery of the Units on the Closing Date on the terms and in the manner contemplated in the Prospectus. All such opinions, certificates, letters and documents will be in compliance with respect the provisions hereof only if they are reasonably satisfactory in form and substance to the Company’s proposed overseas listing pursuant Underwriters and to Vxxxxx & Exxxxx L.L.P., counsel for the several Underwriters. The Partnership will furnish the Underwriters with such signed and conformed copies of such opinions, certificates, letters and documents as they may request. In accordance with the provisions of Section 11, hereof, this Agreement may be terminated by the Underwriters at any time at or prior to the Revised Cybersecurity Review Measures.Closing Date by notice to the Partnership if any condition specified in Section 7 shall not have been satisfied on or prior to the Closing Date
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations obligation of the Underwriters each Underwriter to purchase and pay for the Securities Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as provided herein shall be to which it exercises its right to purchase under Section 4 on an Option Closing Date, is subject to: (i) at the date hereof, the Closing Date and any Option Closing Date to the continuing accuracy and fulfillment of the representations and warranties of the Company York Water in all material respects (except as already limited herein containedby materiality) as though made on such date, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the timely performance by the Company York Water of its covenants and other obligations hereunderhereunder in all material respects, and (iv) to each of the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing If required by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the ActRegulations, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission SEC pursuant to Rule 424(b) of the Regulations within the applicable time period; andperiod prescribed for such filing by the Regulations, at or York Water shall have filed a post-effective amendment to the Registration Statement containing the information required by Rule 430A, and such post-effective amendment shall have become effective. York Water shall have filed any material required to be filed by York Water with the SEC in the manner and within the time period required by Rule 433 of the Regulations, including any Issuer Free Writing Prospectus and any Other Free Writing Prospectus
(b) On or prior to the Closing Date and or any Option Closing Date, as the actual time of the Closingcase may be, no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including any document incorporated by reference therein) or any part thereof, post-effective amendment to the Registration Statement or the sale of any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus Shares shall have been issued; issued under the Act or any state or foreign securities law, and no proceedings for the issuance of such an order that purpose shall have been initiated or threatened; all requests shall be pending or, to the Underwriters’ knowledge or the knowledge of York Water, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Underwriters pursuant to Section 5(f) of this Agreement. Any request on the part of the Commission SEC or any state or foreign securities authority for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of counsel for the Underwriters’ satisfaction.
(bc) The Underwriters shall not have reasonably determinedAll corporate and other proceedings and other matters incident to the authorization, form and advised validity of this Agreement, the Company, that Shares and the form of the Registration Statement, the General Disclosure Package or Statutory Prospectus and the Prospectus, and all other legal matters related to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all respects to counsel to the Underwriters. York Water shall have furnished to such counsel all documents and information that they shall have reasonably requested to enable them to pass upon such matters.
(d) The Underwriters shall have received from the Underwriters’ counsel, Xxxxxxx Xxxxx LLP, an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Underwriters which opinion shall be satisfactory in all respects to the Representative
(e) The Underwriters shall have received a copy of an executed Lock-up Agreement from each of the persons listed on Schedule III hereto.
(f) On the Closing Date and any Option Closing Date, there shall have been delivered to the Underwriters the opinion and negative assurance statements of Xxxxxx, Xxxxx & Bockius LLP, counsel for York Water, and Post & Xxxxxx, regulatory counsel for York Water, dated as of such date and addressed to the Underwriters to the effect set forth in Exhibit A hereto or to such effect as is otherwise reasonably satisfactory to the Representative.
(g) At the Closing Date and any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereof thereto and the Prospectus and any amendments or supplement supplements thereto shall contain all statements that are required to be stated therein in accordance with the Act and the Regulations, and shall conform to the requirements of the Act and the Regulations in all material respects, and neither the Registration Statement nor any post-effective amendment thereto, nor the Prospectus and any amendments or supplements thereto shall contain any Issuer Free Writing Prospectus, contains an untrue statement of a material fact which, in the Underwriters’ reasonable opinion, is material, or omits omit to state a any material fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein (and, with respect to the Prospectus, in light of the circumstances under which they were made), not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, ; (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to since the respective dates as of which information is given in the Registration Statement and any post-effective amendment thereto and the ProspectusProspectus and any amendments or supplements thereto, except as otherwise stated therein, there has not shall have been any Material Adverse Change or any development involving a prospective Material Adverse Change, no material adverse change in the Business Conditions of York Water from that set forth therein whether or not arising from transactions in the ordinary course of business; (iii) no action, suit or proceeding at law or in equity shall be pending or threatened against York Water that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings (other than rate cases filed by York Water) shall be pending or threatened against or directly affecting York Water before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would materially adversely affect the Business Conditions of York Water; and (iv) since the time of execution of this Agreement, there shall have been no material adverse change in the Business Conditions of York Water.
(eh) The Underwriters shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of York Water dated as of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the Underwriters to the effect that (i) the representations and warranties of York Water in this Agreement are true and correct, as if made at and as of the Closing Date or the Option Closing Date, as the case may be, and that York Water has complied with all the agreements, fulfilled all the covenants and satisfied all the conditions on its part to be performed, fulfilled or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions set forth in Section 8(g) hereof have been satisfied.
(i) At each of the time the Prospectus is filed and at the Closing Date and any Option Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”)letter, substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement delivery thereof, from Xxxxx Xxxxxx Company LLP with respect to the financial statements and on certain financial information of York Water set forth in or incorporated by reference in the Closing DateRegistration Statement, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (Disclosure Package and the “Auditor Comfort Letter”) as of Prospectus, each such date, letter addressed to the Underwriters Underwriters, containing statements and information of the type ordinarily included in accountants’ “comfort letters” and in form and substance satisfactory to the Underwriters and Underwriters’ Counselin all respects; provided, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of each such letter shall use a “cut-off” date (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 no more than five (5) business days prior to such date), the conclusions and findings date of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(gj) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there FINRA shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the Offering or the fairness and reasonableness of the underwriting terms and arrangements.
(lk) No action The Shares shall have been taken listed on the NASDAQ Global Select Market.
(l) At the Closing Date and no statuteany Option Closing Date, rule, regulation or order the Underwriters shall have been enactedfurnished such additional documents, adopted information and certificates as the Representative shall have reasonably requested. All such opinions, certificates, letters and documents shall be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Representative and the Underwriters’ counsel. York Water shall furnish the Underwriters with such conformed copies of such opinions, certificates, letters and other documents as the Representative shall reasonably request. If any condition to the Underwriters’ obligations hereunder to be fulfilled prior to or issued by at the Closing Date or any federal, state or foreign governmental or regulatory authority that would, as of the Option Closing Date, prevent as the issuance or sale of the Securities; and no injunction or order of any federalcase may be, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with fulfilled, the CAC Representative may terminate this Agreement with respect to the Company’s proposed overseas listing pursuant Closing Date or such Option Closing Date, as applicable, or, if it so elects, waive any such conditions which have not been fulfilled or extend the time for their fulfillment. Any such termination shall be without liability of the Underwriters to the Revised Cybersecurity Review MeasuresYork Water, except that Section 7 and Section 9 shall at all times be effective and shall survive such termination.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder, as to purchase and pay for the Securities as provided herein Shares to be delivered at each Time of Delivery, shall be subject to: subject, to the condition (iwhich condition may be waived by the Underwriters) the accuracy of the that all representations and warranties and other statements of the Company herein containedare, as of the date hereof at and as of such Time of Delivery, true and correct, the Closing Date or condition that the Additional Closing Date, (ii) statements of the absence from Company and its officers made in any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel certificate delivered pursuant to this Section 7 Agreement shall be, at and as of any misstatement or omissionsuch Time of Delivery, (iii) true and correct, the performance by condition that the Company shall have performed all of its obligations hereunderhereunder theretofore to be performed, and (iv) each of the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time periodperiod prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or Statement, any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure PackagePreliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings proceeding for the issuance of such an order that purpose shall have been initiated or threatenedthreatened by the Commission; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; and all requests for additional information on the part of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ Representative’s reasonable satisfaction.;
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and LLP (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLPUS), counsel to the Underwriters, shall have furnished to the Representative its (i) written opinionUnderwriters such opinion or opinions, addressed dated such Time of Delivery, with respect to this Agreement, the Registration Statement, the Pricing Disclosure Package, the Prospectus and other related matters as the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Officesrequest;
(c) Faegre Xxxxx Xxxxxxx LLP, PRC counsel to the UnderwritersCompany, shall have furnished to the Representative its Underwriters their written opinionopinion and letter, addressed to the Underwriters and each dated the Closing Date or any Additional Closing Date, as the case may besuch Time of Delivery, in form and substance satisfactory to mutually agreed upon by the Company and Representative.;
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of On the date hereof and as also at each Time of Delivery, McGladrey LLP, shall have furnished to the Underwriters a letter or letters containing statements and information of the Closing Datetype ordinarily included in accountants’ “comfort letters” with respect to the financial statements and certain financial information contained in the Registration Statement, the representations Pricing Prospectus and warranties the Prospectus, each dated the respective date of delivery thereof, in form and substance reasonably satisfactory to the Underwriters;
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the Company set forth latest audited financial statements included or incorporated by reference in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained Pricing Prospectus any material loss or interference with its businessesbusiness from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated decree, otherwise than as set forth or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included contemplated in the Registration Statement and the Prospectus pursuant to the Regulations which are not so includedPricing Prospectus, and (viiii) subsequent to since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares capital stock (other than the issuance of shares of Common Stock upon exercise of stock options or warrants, or the conversion of other convertible securities, pursuant to contractual obligations described in the aggregate in the Registration Statement, Pricing Prospectus and the Prospectus or the documents incorporated by reference in each of the foregoing) or long-term debt of the Company or any change Material Adverse Effect, otherwise than as set forth or development involving a change, whether or not arising from transactions contemplated in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamityPricing Prospectus, the effect of which, in any such case described abovein clause (i) or (ii), is, is in the reasonable sole judgment of the Underwriters, Representative so material and adverse as to make it impracticable or inadvisable to proceed with the sale public offering or the delivery of Securities the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(f) On or Offering after the date hereof there shall not have occurred any of the following: (i) additional material governmental restrictions, not in force and effect on the date hereof, shall have been imposed upon trading in securities generally or minimum or maximum prices shall have been generally established on the New York Stock Exchange, The NASDAQ Global Market, the NYSE Amex or in the over-the-counter market by FINRA, or trading in securities generally shall have been suspended on the New York Stock Exchange, The NASDAQ Global Market, the NYSE Amex or in the over the counter market by FINRA, or a general banking moratorium shall have been established by federal or New York authorities, (ii) a suspension or material limitation in trading in securities generally on The NASDAQ Global Market, (iii) a suspension or material limitation in trading in the Company’s securities on The NASDAQ Global Market, (iv) an outbreak of major hostilities or other national or international calamity or any substantial change in political, financial or economic conditions shall have occurred or shall have accelerated or escalated to such an extent, as, in the sole judgment of the Representative, to affect materially and adversely the marketability of the Shares or (v) there shall be any action, suit or proceeding pending or threatened, or there shall have been any development or prospective development involving particularly the business or properties or securities of the Company or any of its subsidiaries or the transactions contemplated by this Agreement, which, in the sole judgment of the Representative, has materially and adversely affected the Company’s business or earnings and makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(g) The Shares to be sold at such Time of Delivery shall have been duly listed, subject to notice of issuance, on The NASDAQ Global Market;
(h) Each director and executive officer of the Company, in their capacities as contemplated hereby.such, shall have executed and delivered to the Underwriters a lock-up agreement in form and substance reasonably satisfactory to the Representative;
(i) The Underwriters shall have received on and as of each Time of Delivery, as the case may be, satisfactory evidence of the good standing of the Company in its jurisdiction of organization and its good standing as a lock-up agreement from foreign entity in the jurisdictions set forth on Schedule III hereto, each Lock-Up Party, duly executed by the applicable Lock-Up Partydated within 10 business days of each Time of Delivery, in each case substantially in writing or any standard form of telecommunication from the form attached as Annex IV.appropriate governmental authorities of such jurisdictions;
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 each Time of Delivery, as the Closing Datecase may be, prevent the issuance or sale of the SecuritiesShares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of each Time of Delivery, as the Closing Datecase may be, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.Shares; and
(mk) The Company shall have furnished or caused to be furnished to the Underwriters at such Time of Delivery a certificate signed by the Chief Executive Officer and Underwriters’ Counsel with Chief Financial Officer of the Company, as to the accuracy of the representations and warranties of the Company herein, at and as of such Time of Delivery, as to the performance by the Company of all of its obligations and satisfied all of the conditions hereunder to be performed on its part at or prior to such Time of Delivery, and as to such other certificatesmatters as the Representative may reasonably request, opinions or documents as they may have reasonably requested.
(n) The CSRC and the Company shall have concluded furnished or caused to be furnished certificates as to the CSRC Filings matters set forth in subsections (a) and published the filing results on January 2, 2024 in respect (e) of the CSRC Filings on its websitethis Section, and as to such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidatedother matters as the Representative may reasonably request.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Firm Securities or Additional Securities, as the case may be, as provided herein shall be subject to: (i) the accuracy of the representations and warranties of the Company herein contained, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and (iviii) each of the following additional conditionsconditions set forth below. For purposes of this Section 6, the terms “Closing Date” and “Closing” shall refer to the Closing Date for the Firm Securities or Additional Securities, as the case may be, and each of the foregoing and following conditions must be satisfied as of each Closing.
(a) The Registration Statement shall have become effective and all necessary regulatory and or listing approvals shall have been received not later than 5:30 P.M., Eastern TimeNew York time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the UnderwritersRepresentative. If the Company shall have elected to rely upon Rule 430A under the Securities Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof hereof and a form of the Prospectus containing information relating to the description of the Public Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and or the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the any Preliminary Prospectus or any Issuer Free Writing the Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or or, to the Company’s knowledge, threatened; all requests any request of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ Representative’s satisfaction.
(b) The Underwriters Representative shall not have reasonably determined, and advised the Company, that the Registration Statement, Statement or the General Disclosure Package or the ProspectusPackage, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ Representative’s reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ Representative’s reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters Representative shall have receivedreceived the written opinion of Gxxxxxxxx Txxxxxx, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to Representative of the Underwriters and dated substantially in the Closing Date or any Additional Closing Date, form attached hereto as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the RepresentativeAnnex II.
(d) All proceedings taken in connection with the sale of the Securities herein contemplated shall be satisfactory in form and substance to the Representative and to Underwriters’ Counsel.
(e) The Underwriters Representative shall have received certificates a certificate of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”)Company, substantially in the form attached hereto as Annex I and dated as of the each Closing Date, Date to the effect that: (i) the conditions condition set forth in subsection subsections (a) and (i) of this Section 7 6 have been satisfied, (ii) as of the date hereof and as of the applicable Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the applicable Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, and (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, Prospectus there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters Representative shall have received a “cold comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) GHP as of each such date, the date of the date of delivery and addressed to the Underwriters and in form and substance satisfactory to the Underwriters Representative and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company and its Subsidiaries within the meaning of the Securities Act and all applicable the Rules and Regulations, and stating, as of such the date of delivery (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five three (53) days prior to the date of such dateletter), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the CompanyCompany and the Subsidiaries, taken as a whole, including including, but not limited to to, the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable sole judgment of the UnderwritersRepresentative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale Offering on the terms and in the manner contemplated in the Prospectus (exclusive of Securities or Offering as contemplated herebyany supplement).
(ih) The Underwriters Representative shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.I.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(ki) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(lj) The Representative shall have received a certificate of the Company’s Secretary, dated such Closing Date, in form and substance reasonably satisfactory to the Representative.
(k) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the CompanySecurities.
(ml) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or other documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect . If any of the CSRC Filings on its websiteconditions specified in this Section 6 shall not have been fulfilled when and as required by this Agreement, and such notice or if any of acceptance and/or filing results published not having otherwise been rejectedthe certificates, withdrawnopinions, revoked written statements or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect letters furnished to the Company’s proposed overseas listing Representative or to Underwriters’ Counsel pursuant to this Section 6 shall not be reasonably satisfactory in form and substance to the Revised Cybersecurity Review MeasuresRepresentative and to Underwriters’ Counsel, all obligations of the Underwriters 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 by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
Appears in 1 contract
Samples: Underwriting Agreement (Enerpulse Technologies, Inc.)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters of any Designated Securities under the Pricing Agreement relating to purchase and pay for the such Designated Securities as provided herein shall be subject to: (i) subject, in the accuracy discretion of the Representatives, to the condition that all representations and warranties and other statements of the Company herein containedCorporation in or incorporated by reference in the Pricing Agreement relating to such Designated Securities are, at and as of the date hereof of such Pricing Agreement and as of the Closing Date or Time of Delivery for such Designated Securities, true and correct, the Additional Closing Date, (ii) condition that the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company Corporation shall have performed all of its obligations hereunderhereunder theretofore to be performed, and (iv) each of the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, Prospectus as amended or at such later time and date as shall have been consented to supplemented in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating relation to the description of the applicable Designated Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time periodperiod prescribed for such filing by the rules and regulations under the 1933 Act and in accordance with Section 4(a) hereof; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus thereof shall have been issued; issued and no proceedings proceeding for the issuance of such an order that purpose shall have been initiated or threatenedthreatened by the Commission; and all requests for additional information on the part of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ Representatives' reasonable satisfaction.;
(b) The Counsel for the Underwriters shall have furnished to the Representatives such opinion or opinions, dated such Time of Delivery, with respect to the incorporation of the Corporation, the validity of the Designated Securities being delivered at such Time of Delivery, the Registration Statement, the Prospectus and such related matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Counsel for the Corporation satisfactory to the Representatives (it being understood that James A. Squires, Esq., Senior General Counsel of the Cxxxxxxxxxx (xx xnother senior corporate counsel designated by the Corporation) shall be deemed to be reasonably satisfactory to the Representatives) shall have furnished to the Representatives his written opinion, dated the Time of Delivery for such Designated Securities, in form and substance satisfactory to the Representatives, to the effect that:
i) The Corporation has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Commonwealth of Virginia, with corporate power and authority to own its properties and conduct its business as described in the Prospectus as amended or supplemented and the Corporation has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which the conduct of its business or the ownership of its property requires such qualification;
ii) To the best of such counsel's knowledge there are no legal or governmental proceedings pending to which the Corporation, any of its subsidiaries or Conrail is a party or of which any property of the Corporation, any of its subsidiaries or Conrail is the subject required to be described in the Registration Statement or the Prospectus which is not described as required; to the best of such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
iii) This Agreement and the Pricing Agreement with respect to the Designated Securities have been duly authorized, executed and delivered by the Corporation;
iv) The issuance and sale of the Designated Securities have been duly authorized by the Corporation; the Underwriters' Securities have been duly executed, issued and delivered by the Corporation and when authenticated in accordance with the terms of the Indenture and paid for by the Underwriters in accordance with the terms of this Agreement and the Pricing Agreement, will be valid and binding obligations of the Corporation enforceable in accordance with their terms and entitled to the benefits of the Indenture, except (a) to the extent that enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity) and (b) that such counsel expresses no opinion as to Section 512 of the Indenture;
v) The Indenture applicable to the Designated Securities has been duly authorized, executed and delivered by the Corporation and is a valid and binding agreement of the Corporation, enforceable against the Corporation in accordance with its terms, except (a) to the extent that enforcement thereof may be limited by (i) bankruptcy, in solvency, reorganization, moratorium, fraudulent transfer or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity) and (b) that such counsel expresses no opinion as to Section 512 of the Indenture; and the Indenture has been qualified under the Trust Indenture Act;
vi) The issuance and sale of the Designated Securities and the compliance by the Corporation with all of the provisions of the Designated Securities, the Indenture, this Agreement and the Pricing Agreement with respect to the Designated Securities and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Corporation or NSR pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Corporation is a party or by which the Corporation or NSR is bound or to which any of the property or assets of the Corporation or NSR is subject, other than those conflicts, breaches or defaults that would not have reasonably determineda Material Adverse Effect, nor will such actions result in any violation of the provisions of the Restated Articles of Incorporation or Bylaws of the Corporation or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Corporation or NSR or any of their properties, other than those violations that would not have a Material Adverse Effect, except that counsel expresses no opinion with respect to the State securities or Blue Sky laws or the laws of any foreign jurisdiction or with respect to the rights to indemnity and contribution under the Underwriting Agreement;
vii) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Designated Securities or the consummation by the Corporation of the transactions contemplated by this Agreement or such Pricing Agreement or the Indenture, except such as have been obtained under the 1933 Act and the Trust Indenture Act and such consents, approvals, authorizations, orders, registrations or qualifications as may be required under State securities or Blue Sky laws or under the laws of foreign jurisdictions in connection with the purchase and distribution of the Designated Securities by the Underwriters;
viii) The statements set forth in the Prospectus under the caption "Description of Securities" and under the caption "Description of Designated Securities" (or comparable caption) in the Prospectus as amended or supplemented in respect of the Designated Securities, insofar as they purport to summarize certain provisions of the laws and documents referred to therein, fairly summarize such provisions in all material respects;
ix) The documents incorporated by reference in the Prospectus as amended or supplemented, when they were filed with the Commission appeared on their face to be appropriately responsive in all material respects to the requirements of the 1934 Act and the rules and regulations thereunder, except that such counsel expresses no opinion as to the financial statements, related schedules and other financial data, and advised such counsel does not assume any responsibility for the Companyaccuracy, completeness or fairness of the statements contained in the documents incorporated by reference in the Prospectus as amended or supplemented; and
x) The Registration Statement, as of its effective date, and the Prospectus as amended or supplemented, as of its date, and any further amendments and supplements thereto made by the Corporation prior to the Time of Delivery for the Designated Securities, appeared on their face to be appropriately responsive in all material respects to the requirements of the 1933 Act and the Trust Indenture Act and the rules and regulations thereunder, except that in each case, such counsel expresses no opinion as to the financial statements, schedules and other financial data, and such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Prospectus, except for those referred to in the opinion in paragraph (viii) of this Section 6(c). In addition, such counsel shall state that, although he is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, no facts have come to such counsel's attention that have led him to believe that the Registration Statement, at the General Disclosure Package or the Prospectustime it became effective, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains contained an untrue statement of a material fact which, in the Underwriters’ reasonable opinion, is material, or omits omitted to state a material fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have receivedmisleading or that, as of its date and the Time of Delivery, the Prospectus as amended or supplemented, or any further amendment or supplement thereto made by the Corporation prior to the Time of Delivery, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in form satisfactory light of the circumstances under which they were made, not misleading, except that such counsel expresses no opinion or belief with respect to the Underwriters financial statements, schedules, other financial data and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel the Forms T-1 filed as an exhibit to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of latest registration statement; In rendering the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLPrequired under this Section 6(c), counsel to the UnderwritersCorporation need not express any opinion concerning the laws of any jurisdiction other than those of the Commonwealth of Virginia and the United States of America, provided that such counsel states that he is aware of no difference between the laws of the Commonwealth of Virginia and the laws of the State of New York which would cause him to believe that his opinion would be inapplicable if it were furnished in connection with the laws of the State of New York. In addition, in rendering the opinion required under this Section 6(c), such counsel may rely as to matters of fact, to the extent such counsel deems it proper, on certificates of responsible officials of the Corporation and public officials.
(d) On the date of the Pricing Agreement for such Designated Securities and at the Time of Delivery for such Designated Securities, the independent accountants of the Corporation who have certified the financial statements of the Corporation and its subsidiaries included or incorporated by reference in the Registration Statement shall have furnished to the Representative its (i) written opinionRepresentatives a letter, addressed dated the date of the Pricing Agreement, and a letter dated such Time of Delivery, respectively, each to the Underwriters effect set forth in Annex II hereto, and with respect to such letter dated the Closing Date or any Additional Closing Datesuch Time of Delivery, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, such other matters as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel Representatives may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.Representatives;
(de) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to Since the respective dates as of which information is given in the Registration Statement and Prospectus as amended or supplemented prior to the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each date of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors Pricing Agreement relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto)Designated Securities, there shall not have been any change in the Ordinary Shares or long-term debt of the Company material adverse change, or any change or development involving a prospective material adverse change, whether in or not arising from transactions affecting the financial position, shareholders' equity or results of operations of the Corporation and its subsidiaries considered as one enterprise or, to the best of the Corporation's knowledge, Conrail otherwise than as set forth or contemplated in the ordinary course of business, in Prospectus as amended or supplemented prior to the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects date of the Company, taken as a whole, including but not limited Pricing Agreement relating to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamityDesignated Securities, the effect of which, in any such case described above, is, which is in the reasonable judgment of the Underwriters, Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the sale public offering or the delivery of the Underwriters' Securities on the terms and in the manner contemplated in the Prospectus as first amended or Offering as contemplated hereby.supplemented relating to the Designated Securities;
(f) On or after the date of the Pricing Agreement relating to the Designated Securities (i) The Underwriters no downgrading shall have received a lock-up agreement from each Lock-Up Partyoccurred in the rating accorded the Corporation's debt securities or preferred stock, duly executed if any, by any "nationally recognized statistical rating organization", as that term is defined by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(jCommission for purposes of Rule 436(g)(2) The Shares are registered under the Exchange Act and1933 Act, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of (ii) no such action organization shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, publicly announced on or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating after such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed date that it has not raised under surveillance or review, with possible negative implications, its rating of any objection of the Corporation's debt securities or preferred stock, if any;
(g) The Corporation shall have complied with the provisions of Section 4(c) hereof with respect to the fairness and reasonableness furnishing of prospectuses on the New York Business Day next succeeding the date of the underwriting terms and arrangements.Pricing Agreement;
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(mh) The Company Corporation shall have furnished or caused to be furnished to the Underwriters Representatives at the Time of Delivery for the Designated Securities a certificate or certificates of officers of the Corporation satisfactory to the Representatives as to the accuracy of the representations and Underwriters’ Counsel with warranties of the Corporation herein at and as of such Time of Delivery, as to the performance by the Corporation of all of its obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth in subsections (a) and (f) of this Section and as to such other certificates, opinions or documents matters as they the Representatives may have reasonably requestedrequest.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters to purchase and pay for the Securities Shares, as provided herein herein, shall be subject to: (i) to the accuracy accuracy, as of the date hereof and the Closing Date and any later Overallotment Closing Date, as the case may be, of the representations and warranties of the Company herein containedherein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, hereunder and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M.9:00 a.m., Eastern TimeNew York City time, on the day immediately following the date of this Agreement, or at such later time and or date as shall have been be consented to in writing by the Underwritersyou. If the Company shall have elected filing of the Prospectus, or any supplement thereto, is required pursuant to rely upon Rule 424(b) and Rule 430A under of the ActRules and Regulations, the Prospectus shall have been filed with in the Commission in a timely fashion in accordance with manner and within the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to time period required by Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time Rule 430A of the Closing, no Rules and Regulations. No stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings proceeding for the issuance of such an order that purpose shall have been initiated or, to the knowledge of the Company or threatened; all requests any Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, Statement or the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of counsel to the Underwriters’ satisfaction.
(b) The Underwriters shall not have reasonably determinedAll corporate proceedings and other legal matters in connection with this Agreement, the form of Registration Statement, and advised the Prospectus, and the registration, authorization, issue, sale and delivery of the Shares shall have been reasonably satisfactory to counsel to the Underwriters, and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to herein.
(c) You shall have received, at no cost to you, on the Closing Date and on any later Overallotment Closing Date, as the case may be, the opinion of Xxxxx & Xxxxxxx, counsel to the Company, dated the Closing Date or such later Overallotment Closing Date, in the form attached hereto on Appendix A, addressed to the Underwriters and with reproduced copies of signed counterparts thereof for the Representative.
(d) You shall have received from Proskauer Rose LLP, Underwriters' Counsel, an opinion or opinions, dated the Closing Date or on any later Overallotment Closing Date, as the case may be, in form and substance reasonably satisfactory to you, with respect to certain legal matters as you may reasonably require, and the Company shall have furnished to such counsel such documents as it may have reasonably requested for the purpose of enabling it to pass upon such matters.
(e) You shall have received on the Closing Date and on any later Overallotment Closing Date, as the case may be, a letter from the Accountants addressed to the Company and the Underwriters, dated the Closing Date or such later Overallotment Closing Date, as the case may be, confirming that it is an independent certified public accountant with respect to the Company within the meaning of the Act and the Rules and Regulations thereunder and based upon the procedures described in its letter delivered to you concurrently with the execution of this Agreement (herein called the "Original Letter"), but carried out to a date not more than three days prior to the Closing Date or any such later Overallotment Closing Date, as the case may be, (i) confirming that the statements and conclusions set forth in the Original Letter are accurate as of the Closing Date or such later Overallotment Closing Date, as the case may be; and (ii) setting forth any revisions and additions to the statements and conclusions set forth in the Original Letter that are necessary to reflect any changes in the facts described in the Original Letter since the date of such letter, or to reflect the availability of more recent financial statements, data or information. The letter shall not disclose any change, or any development involving a prospective change, in or affecting the business or properties of the Company which, in your reasonable judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Prospectus. In addition, you shall have received from the Accountants a letter addressed to the Company and made available to you for the use of the Underwriters stating that its review of the Company's system of internal accounting controls, to the extent it deemed necessary in establishing the scope of its latest examination of the Company's financial statements, did not disclose any weaknesses in internal controls that it considered to be material weaknesses. All such letters shall be in a form reasonably satisfactory to the Representative and its counsel.
(f) You shall have received on the Closing Date and on any later Overallotment Closing Date, as the case may be, a certificate of the President and the Chief Financial Officer of the Company, dated the Closing Date or such later date, to the effect that as of such date (and you shall be satisfied that as of such date):
(i) The representations and warranties of the Company in this Agreement are true and correct, as if made on and as of the Closing Date or any later Overallotment Closing Date, as the case may be; and the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied at or prior to the Closing Date or any later Overallotment Closing Date, as the case may be;
(ii) The Registration Statement has become effective under the Act and no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus has been issued, and no proceedings for that purpose have been instituted or are pending or, to the best of their knowledge, threatened under the Act;
(iii) They have carefully reviewed the Registration Statement, and the Prospectus; and, when the Registration Statement became effective and at all times subsequent thereto up to the delivery of such certificate, the Registration Statement and the Prospectus and any amendments or supplements thereto contained all statements and information required to be included therein or necessary to make the statements therein not misleading; and when the Registration Statement became effective, and at all times subsequent thereto up to the delivery of such certificate, none of the Registration Statement, the General Disclosure Package or the Prospectus, Prospectus or any amendment thereof or supplement thereto, or thereto included any Issuer Free Writing Prospectus, contains an untrue statement of a material fact which, in the Underwriters’ reasonable opinion, is material, or omits omitted to state a any material fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received; and, in form satisfactory to since the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Effective Date, as the case may be, and (ii) negative assurance letter, addressed there has occurred no event required to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions be set forth in subsection (a) of this Section 7 have an amended or supplemented Prospectus that has not been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company so set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, forth; and
(iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent Subsequent to the respective dates as of which information is given in the Registration Statement Statement, and the Prospectus, there has not been (A) any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions material adverse change in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents properties or assets described or referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and the Prospectus or in the condition (the “CFO Certificate”financial or otherwise), providing “management comfort” with respect to such informationoperations, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares business or long-term debt prospects of the Company or and the Subsidiary, (B) any change or development involving a changetransaction which is material to the Company and the Subsidiary, whether or not arising from except transactions entered into in the ordinary course of business, in (C) any obligation, direct or contingent, incurred by the businessCompany or the Subsidiary, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of which is material to the Company, Company and the Subsidiary taken as a whole, including but not limited (D) any change in the capital stock or outstanding indebtedness of the Company or the Subsidiary which is material to the occurrence Company and the Subsidiary taken as a whole or (E) any dividend or distribution of any firekind declared, floodpaid or made on the capital stock of the Company, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case except as specifically described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated herebyProspectus.
(ig) The Underwriters Company shall have received a lock-up agreement from each Lock-Up Partyfurnished to you such further certificates and documents as you shall reasonably request as to the accuracy of the representations and warranties of the Company herein, duly executed as to the performance by the applicable Lock-Up Party, in each case substantially in Company of its obligations hereunder and as to the form attached as Annex IVother conditions precedent to the obligations of the Underwriters hereunder.
(jh) The Firm Shares are registered under and the Exchange Act andOverallotment Shares, as of the Closing Dateif any, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided approved for listing upon notice of issuance on the AMEX. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to counsel to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel furnish you with such other number of conformed copies of such opinions, certificates, opinions or letters and documents as they may have you shall reasonably requestedrequest.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Securities as provided herein shall be Notes under this Agreement are subject to: (i) the accuracy of the representations and warranties of the Company herein contained, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 satisfaction of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and (iv) each of the following additional conditions.:
(a) The Registration Statement shall have become become, and shall remain, effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time Agreement and date as shall have been consented to in writing by through the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, Closing Date; the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(bSection 4(a)(iv) within the applicable time periodhereof; and, at or prior to the Closing Date and the actual time of the ClosingDate, no stop order suspending the effectiveness of of, or preventing the use of, the Registration Statement or any part thereofpost-effective amendment thereto, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Preliminary Prospectus, any Issuer Free Writing Prospectus or otherwisethe Prospectus shall have been issued and no proceeding for that purpose or pursuant to Rule 401(g)(2) or Section 8A of the Securities Act against the Company or related to the Offering shall have been initiated or, to the Company’s knowledge, threatened by the Commission. The Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of a Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for additional information shall have been complied with to the Underwriters’ satisfactionreasonable satisfaction of the Representative.
(b) The Underwriters All the representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct on the date hereof and on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(c) At or after the Applicable Time, there shall not have reasonably determinedbeen any downgrading, nor shall any notice have been given of any intended or potential downgrading in the rating accorded any of the Company’s securities by any “nationally recognized securities rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act, or any public announcement that any such organization has under surveillance or review its rating of any such securities (other than an announcement with positive implications of a possible upgrading, and advised no implication of a possible downgrading of such rating).
(i) Since the Company, that date of the latest balance sheet included in the Registration Statement, the General Pricing Disclosure Package and the Prospectus, there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the business prospects, financial condition or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, except as otherwise described in the Registration Statement, the Pricing Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(cii) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date Date, the obligations of the Company to be performed hereunder on or prior thereto have been duly performed, (iii) since the date of the latest balance sheet included in the Registration Statement, the Pricing Disclosure Package and addressed the Prospectus, there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the capital stock or in the long-term debt of the Company from that set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus, except as otherwise described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (iv) the Company and its subsidiaries shall have no liability or obligation, direct or contingent, which is material to the UnderwritersCompany and its subsidiaries, taken as a whole, other than those in the Registration Statement, the Pricing Disclosure Package and the Prospectus, and (v) on the Closing Date you shall have received a certificate dated the Closing Date, signed by C. Xxxxxxx Xxxxx, in his capacity as Chairman of the Board and Chief Executive Officer, and by Xxxxx X. XxXxxx, in his capacity as Executive Vice President and Chief Financial Officer of the Company, confirming the matters set forth in paragraphs (a), (iib), (c) legal opinions and (d) of this Section 6.
(e) At the Closing Date you shall have received the written opinion and negative assurance letter from DLA Piper UK of Xxxxxxxx & Worcester LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and in form and substance reasonably satisfactory to the Underwriters and Underwriters’ Counsel.
(f) At the Closing Date you shall have received the written opinion and negative assurance of Xxxxxx X. Xxxxxxxx, Esq., General Counsel for the Company, dated as of the Closing Date, addressed to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On At the date Closing Date you shall have received the written opinion of this Agreement Gesmer Xxxxxxxxx LLP, special Connecticut counsel for U.S. Bank National Association, the Owner Trustee of Iron Mountain Statutory Trust – 1998, Iron Mountain Statutory Trust – 1999 and on Iron Mountain Statutory Trust – 2001 (collectively, the “Connecticut Guarantors”; each of the Guarantors that is not a Connecticut Guarantor is referred to herein as a “Delaware Guarantor” and, collectively, the “Delaware Guarantors”), dated the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained Underwriters in the Registration Statement form attached hereto as Annex III and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXXUnderwriters and Underwriters’ Counsel.
(h) The Underwriters shall have received on the Closing Date the written opinion and negative assurance letter of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, as to such matters as the Underwriters shall reasonably request.
(i) The Underwriters shall have received a letter on and as of the date of this Agreement (the “initial letter”), in form and substance satisfactory to you, from Deloitte & Touche LLP, the independent registered public accounting firm of the Company, with respect to the financial statements and certain financial information contained or referred to in the Registration Statement, the Pricing Disclosure Package and the Prospectus and a letter on and as of the Closing Date, in form and substance satisfactory to you, from Deloitte & Touche LLP confirming the information contained in the initial letter.
(j) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) Statement, the Pricing Disclosure Package and the Prospectus (exclusive of any amendment or supplement theretothereto after the date hereof), there shall not have been any change in the Ordinary Shares capital stock or long-term debt of the Company or any change of its subsidiaries or any change, or any development involving a prospective change, whether in or not arising from transactions in affecting the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equitybusiness, properties or prospects of the Company, Company and its subsidiaries taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the UnderwritersRepresentative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale public offering or the delivery of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially Notes on the terms and in the form attached as Annex IV.
manner contemplated in the Prospectus (j) The Shares are registered under the Exchange Act and, as exclusive of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligiblesupplement).
(k) FINRA The Company shall have confirmed that it has not raised any objection complied with the provisions of Section 4(a)(iv) hereof with respect to the fairness and reasonableness furnishing of Prospectuses on the underwriting terms and arrangementsnext business day succeeding the date of this Agreement.
(l) No action shall have been taken and no statute, rule, regulation On or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of prior to the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court DTC shall have been issued that would, as of accepted the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the CompanyNotes for clearance.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or other documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect . If any of the CSRC Filings on its websiteconditions specified in this Section 6 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 you or to Underwriters’ Counsel pursuant to this Section 6 shall not be in all material respects reasonably satisfactory in form and substance to you and to Underwriters’ Counsel, all obligations of the Underwriters and the Independent Underwriter hereunder may be cancelled by you at, or at any time prior to, the Closing Date. Notice of such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect cancellation shall be given to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review MeasuresCompany in writing, or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters Underwriter to purchase and pay for the Securities Shares as provided herein shall be subject to: to the accuracy, as of the date hereof and the Closing Date (i) as if made at the accuracy Closing Date), of the representations and warranties of the Company herein containedherein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, hereunder and (iv) each of to the following additional conditions.:
(a) The Notification that the Registration Statement shall have has become effective and all necessary regulatory and listing approvals shall have been be received by the Underwriter not later than 5:30 P.M.5:00 pm., Eastern TimeNew York City time, on the date of this Agreement, Agreement or at such later date and time and date as shall have been be consented to in writing by the Underwriters. If the Company shall have elected to rely upon Underwriter and all filings required by Rule 424 and Rule 430A under of the Act, the Prospectus Rules and Regulations shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time periodmade; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings proceeding for the issuance of such an order that purpose shall have been initiated instituted or, to the knowledge of the Company or threatenedthe Underwriter, threatened by the Commission; all requests and any request of the Commission for additional information (to be included in the Registration Statement, Statement or the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ your satisfaction.
(b) The Underwriters Underwriter shall not have reasonably determined, and advised the Company, Company that the Registration Statement, the General Disclosure Package Statement or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, that in the Underwriters’ reasonable opinion, your opinion is material, or omits to state a fact which, that in the Underwriters’ reasonable opinion, your opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated Except as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially contemplated in the form attached hereto as Annex I and dated as of the Closing DateProspectus, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares capital stock, partnership interests, short-term debt or long-term debt of the Company or its subsidiaries, (ii) there shall not have been any change adverse change, or any development involving a prospective adverse change, in the condition (financial or other), business, prospects, net worth or results of operations of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, and (iii) neither the Company nor any of its subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Underwriter any of the foregoing makes it impractical or inadvisable to offer or deliver the Shares on the terms and in the manner contemplated in the Prospectus.
(d) You shall have received the opinion of Goodxxx, Xxocter & Hoar XXX, counsel for the Company dated the Closing Date, to the effect that:
(i) The Registration Statement has been declared effective under the Act; the Prospectus has been filed with the Commission pursuant to Rule 424; and to the best knowledge of such counsel (which may be based solely on an oral representation of a member of the staff of the Commission) no stop order suspending the effectiveness of the Registration Statement has been issued under the Act and no proceeding for that purpose has been instituted or threatened by the Commission;
(ii) Each part of the Registration Statement, when such part became effective, and the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission and at the Closing Date, complied as to form in all material respects with the requirements of the Act and the Rules and Regulations (other than (A) the financial statements and supporting schedules and other financial and statistical information and data included therein or omitted therefrom, and (B) any documents incorporated therein by reference, as to which such counsel need express no opinion), it being understood that in passing upon compliance as to the form of the Registration Statement, such counsel may assume that the statements made therein are correct and complete;
(iii) The descriptions in the Registration Statement (other than the documents incorporated therein by reference) and Prospectus of statutes are accurate in all material respects and fairly present the information required to be shown; and such counsel do not know of any statutes or legal or governmental proceedings required to be described in the Prospectus that are not described as required, or of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement that are not described and filed as required;
(iv) The form of organization of the Company and its operations are such as to enable the Company to qualify as a "real estate investment trust" under the applicable provisions of the Code.
(v) The Company is not (after giving effect to the sale of the Shares) required to be registered under the 1940 Act;
(vi) The Company is in good standing under the laws of the State of California as a foreign corporation, has full power and authority to conduct its business as described in the Registration Statement and Prospectus;
(vii) Each of the partnerships that owns a Community (the "Partnerships") is a limited partnership duly organized, validly existing and in good standing under the laws of its state of incorporation and has the power under its partnership agreement and the applicable Limited Partnership Act necessary to conduct its business as described in the Registration Statement and Prospectus; each of the corporate subsidiaries of the Company is duly organized, validly existing and in good standing under the laws of its state of incorporation and has the corporate power and authority to conduct its business as described in the Registration Statement and Prospectus;
(viii) The General Partners of each of the Partnerships are duly qualified to do business in the State of California, except where the failure to be so qualified, considering all such cases in the aggregate, does not involve and will not involve a material risk to the business, properties, financial position or results of operations of such subsidiary;
(ix) All of the outstanding shares of Common Stock and the Preferred Stock of the Company identified in the Prospectus (including the Shares) have been duly authorized and are, or when issued as contemplated hereby will be, validly issued, fully paid and nonassessable and conform, or when so issued will conform, to the description thereof in the Prospectus; and the shareholders of the Company have no preemptive or similar rights with respect to the Shares pursuant to the Company's Charter or applicable statute or pursuant to any contract identified on an exhibit to such opinion (which exhibit lists all contracts identified by the Company in an officer's certificate as material under the standard set forth in Item 601(b)(10) of Regulation S-K);
(x) The Company has full corporate power and authority to enter into this Agreement; this Agreement has been duly authorized, executed and delivered by the Company; to the knowledge of such counsel, the issuance and sale of the Shares to the Underwriter on the terms contemplated herein will not result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company, any of its subsidiaries or the Partnerships, pursuant to the terms or provisions of, or result in a breach or violation of any of the terms or provisions of, or constitute a default or result in the acceleration of any obligation under, (i) the articles of incorporation or by-laws of the Company, (ii) the articles or certificate of incorporation or by-laws of any of the Company's subsidiaries, or the partnership agreements or other organizational documents of the Partnerships, (iii) any contract identified on the schedule to such opinion referenced above to which the Company, any of its subsidiaries or the Partnerships is a party or by or pursuant to which any of them or their respective properties is bound, affected or financed or (iv) any statute, judgment, ruling, decree, order, rule or regulation of any court or other governmental agency or body applicable to the business or properties of the Company, any of its subsidiaries or the Partnerships (except that such counsel need express no opinion as to the securities or Blue Sky laws of any jurisdiction other than the United States), where such violation or default, individually or in the aggregate, might have a material adverse effect on the business, properties, business prospects, condition (financial or otherwise), ) or results of operationsoperations of the Company or any of its subsidiaries taken as a whole;
(xi) To the knowledge of such counsel, shareholders’ equityno consent, properties approval, authorization or prospects order of, or filing with, any court or governmental agency or body is required in connection with the issuance or sale of the Shares by the Company, except (i) such as have been obtained under the Act or the Exchange Act, or (ii) such as may be required under state securities laws or the by-laws of the NASD in connection with the purchase and distribution of the Shares by the Underwriter; and
(xii) To the knowledge of such counsel, none of the Company, any of its subsidiaries or the Partnerships is in violation of its articles or certificate of incorporation, by-laws, partnership agreements, or other organizational documents, as applicable, or in default (nor has an event occurred which with notice or lapse of time or both would constitute a default or acceleration) in the performance of any obligation, agreement or condition contained in any Contract known to such counsel to which the Company, any of its subsidiaries or the Partnerships is a party will be a party, or by or pursuant to which any of them or their respective properties is bound, affected or financed will be bound, affected or financed, and, to the knowledge of such counsel, none of the Company, any of its subsidiaries or the Partnerships is in violation of any judgment, ruling, decree, order, franchise, license or permit known to us or any statute, rule or regulation of any court or other governmental agency or body applicable to the business or properties of the Company, any of its subsidiaries or the Partnerships; where such violation or default, individually or in the aggregate, might have a material adverse effect on the business, properties, business prospects, condition (financial or otherwise) or results of operations of the Company or any of its subsidiaries taken as a whole. In connection with delivering such opinion such counsel shall also state:
(a) No facts have come to their attention which cause them to believe that the Registration Statement (excluding the financial statements and notes thereto, including but financial schedules and other financial or statistical information and data included therein or omitted therefrom, as to which they need express no opinion), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not limited misleading; and
(b) No facts have come to their attention which cause them to believe that the Prospectus (excluding the financial statements and notes thereto, financial schedules and other financial or statistical information and data included therein or omitted therefrom, as to which they need express no opinion), as of its date or the date of such opinion, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. In rendering such opinions, such counsel may rely on certificates of public officers, upon opinions of counsel reasonably satisfactory to the occurrence Underwriter, copies of which shall be contemporaneously delivered to the Underwriter, and as to matters of fact, upon certificates of officers of the Company; provided that such counsel shall state that the opinion of any fireother counsel is in form satisfactory to such counsel and, floodsuch counsel is unaware of any reason why it and the Underwriter are not justified in relying on such opinions of other counsel. Copies of all such opinions and certificates shall be furnished to counsel to the Underwriter on the Closing Date.
(e) You shall have received from O'Melveny & Myerx XXX, stormcounsel for the Underwriter (based upon Goodxxx Xxxcter & Hoar XXX's opinion respecting Maryland law), explosionsuch opinion or opinions, accidentdated the Closing Date, act with respect to the organization of war or terrorism or other calamitythe Company, the effect validity of whichthe Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters. In rendering such opinion, such counsel may rely upon certificates of public officers and upon opinions of counsel, copies of which shall be contemporaneously delivered to the Underwriter, and as to matters of fact, upon certificates of officers of the Company.
(f) At the time of the execution of this Agreement, the Underwriter shall have received from Coopers & Lybrxxx x xetter dated such date, in any such case described above, is, form and substance satisfactory to the Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and other financial information included in the reasonable judgment Registration Statement and the Prospectus (the "initial comfort letter"). On the Closing Date, you shall have received from Coopers & Lybrxxx x xetter dated as of the UnderwritersClosing Date to the effect that they reaffirm the statements made in the initial comfort letter, except that the specified date referred to shall be a date not more than five days prior to the Closing Date.
(g) You shall have received from the Company a certificate, signed by the Chairman of the Board or the President and by the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that:
(i) The representations and warranties of the Company in this Agreement were when originally made and are at the time such certificate is delivered true and correct, as if made at and as of the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued, and no proceeding for that purpose has been instituted or is threatened, by the Commission; and
(iii) Since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or Prospectus that has not been so material set forth.
(h) The Shares shall have been approved for listing on the New York Stock Exchange and adverse as the Pacific Exchange, subject only to make it impracticable or inadvisable to proceed with the sale official notice of Securities or Offering as contemplated herebyissuance.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters to you such further certificates and Underwriters’ Counsel with such other certificates, opinions or documents as they may you shall have reasonably requested.
(n) The CSRC shall have concluded . All such opinions, certificates, letters and other documents will be in compliance with the CSRC Filings provisions hereof only if they are satisfactory in form and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) substance to you. The Company is not required to apply for cybersecurity review will furnish you with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measuressuch conformed copies of such opinions, certificates, letters and other documents as you shall reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Bay Apartment Communities Inc)
Conditions of Underwriters’ Obligations. The obligations obligation of the Underwriters each Underwriter to purchase and pay for the Securities Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as provided herein shall be to which it exercises its right to purchase under Section 5 on an Option Closing Date, is subject to: (i) at the date hereof, the Closing Date and any Option Closing Date to the continuing accuracy and fulfillment of the representations and warranties of CWCO and the Company herein containedSelling Shareholders, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by CWCO and the Company Selling Shareholders of its their covenants and obligations hereunder, and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing If required by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the ActRegulations, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission SEC pursuant to Rule 424(b) of the Regulations within the applicable time period; andperiod prescribed for such filing by the Regulations. On or prior to the Closing Date or any Option Closing Date, as the case may be, no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including any document incorporated by reference therein) or the sale of any of the Shares shall have been issued under the Act or any state or foreign securities law, and no proceedings for that purpose shall have been initiated or shall be pending or, to the Representatives' knowledge or the knowledge of CWCO, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Representatives pursuant to Section 6(f) hereof. Any request on the part of the SEC or any state or foreign securities authority for additional information shall have been complied with to the reasonable satisfaction of counsel for the Underwriters.
(b) All corporate proceedings and other matters incident to the authorization, form and validity of this Agreement, the Shares and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriters. CWCO shall have furnished to such counsel all documents and information that they may have reasonably requested to enable them to pass upon such matters. The Representatives shall have received from the Underwriters' counsel, Ballxxx Xxxxx Xxxxxxx & Xngexxxxx, XXP an opinion, dated as of the Closing Date and any Option Closing Date, as the case may be, and addressed to the Representatives individually and as Representatives of the several Underwriters, which opinion shall be satisfactory in all respects to the Representatives.
(c) The Representatives shall have received a copy of an executed Lock-up Agreement from each person listed on Schedule III hereto.
(d) The Representatives shall have received at or prior to the Closing Date from the Underwriters' counsel a memorandum or summary, in form and substance satisfactory to the Representatives, with respect to the qualification for offering and sale by the Underwriters of the Shares under the securities or Blue Sky laws of such jurisdictions designated by the Representatives pursuant to Section 6(f) hereof.
(e) On the Closing Date and any Option Closing Date, there shall have been delivered to the Representatives signed opinions of Steel Hectxx & Xavix XXX and Myerx & Xlbexxx, xxunsel for CWCO and the actual time Selling Shareholders, dated as of each such date and addressed to the Representatives individually and as Representatives of the Closing, no stop order suspending several Underwriters to the effectiveness of effect set forth in EXHIBITS A AND B hereto or to such effect as is otherwise reasonably satisfactory to the Representatives.
(f) At the Closing Date and any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereto and the Prospectus and any amendments or any part thereof, or any amendment thereof, nor suspending or preventing supplements thereto shall contain all statements that are required to be stated therein in accordance with the use Act and the Regulations and in all material respects shall conform to the requirements of the General Disclosure PackageAct and the Regulations, and neither the Registration Statement nor any post-effective amendment thereto nor the Prospectus and any amendments or supplements thereto shall contain any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of a material fact which, in the Underwriters’ reasonable opinion, is material, or omits omit to state a any material fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, ; (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for since the Company, dated respective dates as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and which information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included is given in the Registration Statement and any post-effective amendment thereto and the Prospectus pursuant to and any amendments or supplements thereto, except as otherwise stated therein, there shall have been no material adverse change in the Regulations which are Business Conditions of CWCO from that set forth therein, whether or not so included, and arising in the ordinary course of business; (viiiii) subsequent to since the respective dates as of which information is given in the Registration Statement and the ProspectusProspectus or any amendment or supplement thereto, there has not shall have been any Material Adverse Change no event or any development involving a prospective Material Adverse Changetransaction, whether contract or not arising from transactions agreement entered into by CWCO other than in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto business and as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained set forth in the Registration Statement and Prospectus (the “CFO Certificate”)or Prospectus, providing “management comfort” with respect that has not been, but would be required to such informationbe, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given set forth in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.Prospectus;
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters Underwriter to purchase and pay for the Securities as provided herein shall be Notes which the Underwriter has agreed to purchase hereunder, are subject to: (i) to the accuracy (as of the date hereof, and as of the Closing Dates) of and compliance with the representations and warranties of the Company herein containedIAT herein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company IAT of its obligations hereunder, and (iv) each of to the following additional conditions.:
(a) The Registration Statement (including the Statement of Eligibility and Qualification of the Trustee on Form T-1 (the "Form T-1")), shall have become effective and all necessary regulatory and listing approvals you shall have been received notice thereof not later than 5:30 P.M.10:00 A.M., Eastern TimeNew York time, on the date on which the amendment to the registration statement originally filed with respect to the Notes or to the Registration Statement, as the case may be, containing information regarding the public offering price of this Agreementthe Notes has been filed with the Commission, or at such later time and date as shall have been consented agreed to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the ActUnderwriter; if required, the Prospectus or any Term Sheet that constitutes a part thereof and any amendment or supplement thereto shall have been filed with the Commission in a timely fashion in accordance with the terms thereof manner and a form of within the Prospectus containing information relating to the description of the Securities time period required by Rule 434 and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within under the applicable time periodAct; and, at on or prior to the Closing Date and the actual time of the Closing, Dates no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing (including the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus Form T-1) shall have been issued; issued and no proceedings for the issuance of such an order that or a similar purpose shall have been initiated instituted or threatenedshall be pending or, to your knowledge or to the knowledge of IAT, shall be contemplated by the Commission; all requests any request on the part of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfactionreasonable satisfaction of Xxxxxxx, Xxxxx, Xxxxxxx & Xxxxxx LLP, counsel to the Underwriter. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the 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 promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Underwriters At the First Closing Date, you shall not have received the opinions, addressed to the Underwriter, dated as of the First Closing Date, of Xxxxx & XxXxxxxx, New York, counsel for IAT, and, with respect to matters of the laws of Switzerland, the opinion of Xxxxx & XxXxxxxx, Zurich, counsel for IAT AG and with respect to the laws of Germany, the opinion of Xxxxx & XxXxxxxx, Munich, counsel for FSE, Xxxxxx and IAT Germany, in form and substance substantially in the forms attached hereto. Such opinions shall also cover such matters incident to the transactions contemplated hereby as the Underwriter or counsel for the Underwriter shall reasonably determinedrequest. In rendering such opinions, such counsel may rely upon certificates of any officer of IAT or the Subsidiaries or public officials as to matters of fact; and may rely as to all matters of law other than in the case of the opinion of counsel for IAT, the law of the United States, the State of Delaware or the State of New York and, in the case of the opinion of counsel for IAT AG, the laws of Switzerland, and advised in the Companycase of the opinion of counsel for FSE, Xxxxxx and IAT Germany, the laws of Germany, upon opinions of counsel satisfactory to you, in which case the opinions shall state that they have no reason to believe that you and they are not entitled to so rely.
(c) All corporate proceedings and other legal matters relating to this Agreement, the Registration Statement, the General Disclosure Package Prospectus and other related matters shall be reasonably satisfactory to or approved by Xxxxxxx, Tally, Xxxxxxx & Xxxxxx LLP, counsel to the ProspectusUnderwriter, and you shall have received from such counsel a signed opinion, dated as of the First Closing Date, with respect to the validity of the issuance of the Notes, the form of the Registration Statement and Prospectus (other than the financial statements and other financial data contained therein), the execution of this Agreement and other related matters as you may reasonably require. IAT and each of the Subsidiaries shall have furnished to counsel for the Underwriter such documents as it may reasonably request for the purpose of enabling it to render such opinion.
(d) You shall have received a letter prior to the effective date of the Registration Statement and again on and as of the First Closing Date from Xxxxxxxxx, Xxxx & Company, P.C., independent public accountants for the Company and FSE, substantially in the form approved by you, and including estimates of IAT's and FSE's revenues and results of operations for the period ending at the end of the month immediately preceding the effective date and results of the comparable period during the prior fiscal year.
(e) At the Closing Dates, (i) the representations and warranties of IAT contained in this Agreement shall be true and correct with the same effect as if made on and as of the Closing Dates and IAT and each of the Subsidiaries shall have performed all of its obligations hereunder and satisfied all the conditions on its part to be satisfied at or prior to such Closing Date; (ii) the Registration Statement and the Prospectus and any amendments or supplements thereto shall contain all statements which are required to be stated therein in accordance with the Act and the Rules and Regulations, and shall in all material respects conform to the requirements thereof, and neither the Registration Statement nor the Prospectus nor any amendment thereof or supplement thereto, or thereto shall contain any Issuer Free Writing Prospectus, contains an untrue statement of a material fact which, in the Underwriters’ reasonable opinion, is material, or omits omit to state a any material fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and ; (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion there shall have been provided to the Underwriters with consent from such counsel. VCL Law LLPbeen, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to since the respective dates as of which information is given in the Registration Statement and the Prospectusgiven, there has not been any Material Adverse Change no material adverse change, or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a material adverse change, whether or not arising from transactions in the ordinary course of business, in the business, properties, condition (financial or otherwise), results of operations, shareholders’ equitycapital stock, properties long-term or prospects short-term debt or general affairs of IAT and the Subsidiaries taken as a whole from that set forth in the Registration Statement and the Prospectus, except changes which the Registration Statement and Prospectus indicate might occur after the effective date of the CompanyRegistration Statement, and IAT and each of the Subsidiaries shall not have incurred any material liabilities or entered into any agreement not in the ordinary course of business other than as referred to in the Registration Statement and Prospectus; and (iv) except as set forth in the Prospectus, no action, suit or proceeding at law or in equity shall be pending or threatened against IAT or any of the Subsidiaries which would be required to be set forth in the Registration Statement, and no proceedings shall be pending or threatened against IAT or any of the Subsidiaries before or by any commission, board or administrative agency in the United States, Switzerland, Germany or elsewhere, wherein an unfavorable decision, ruling or finding would materially and adversely affect the business, property, condition (financial or otherwise), results of operations or general affairs of IAT and the Subsidiaries taken as a whole, including but not limited and (v) you shall have received, at the First Closing Date, a certificate signed by each of the Co-Chairmen of the Board, the Chief Executive Officer and the President and the principal financial or accounting officer of IAT, dated as of the First Closing Date, evidencing compliance with the provisions of this subsection (e).
(f) Upon exercise of the option provided for in Section 2(b) hereof, the obligations of the Underwriter to purchase and pay for the Option Notes referred to therein will be subject (as of the date hereof and as of the Option Closing Date) to the occurrence following additional conditions:
(i) The Registration Statement (including the Form T-1) shall remain effective at the Option Closing Date, and no stop order suspending the effectiveness thereof shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending, or, to your knowledge or the knowledge of IAT, shall be contemplated by the Commission, and any firereasonable request on the part of the Commission for additional information shall have been complied with to the satisfaction of Xxxxxxx, floodTally, stormXxxxxxx & Xxxxxx LLP, explosioncounsel to the Underwriter.
(ii) At the Option Closing Date there shall have been delivered to you as Underwriter the signed opinions of Xxxxx & XxXxxxxx, accidentNew York, act counsel for IAT, Xxxxx & XxXxxxxx, Zurich, counsel for IAT AG, and Xxxxx & XxXxxxxx, Munich, counsel for FSE, Xxxxxx and IAT Germany, dated as of war or terrorism or other calamitythe Option Closing Date, in form and substance satisfactory to Xxxxxxx, Xxxxx, Xxxxxxx & Xxxxxx LLP, counsel to the Underwriter, which opinions shall be substantially the same in scope and substance as the opinions furnished to you at the First Closing Date pursuant to Section 4(b) hereof, except that such opinions, where appropriate, shall cover the Option Notes.
(iii) At the Option Closing Date there shall have been delivered to you a letter in form and substance satisfactory to you from Xxxxxxxxx, Xxxx & Company, P.C., dated the Option Closing Date and addressed to the Underwriter confirming the information in their letter referred to in Section 4(d) hereof and stating that nothing has come to its attention during the period from the ending date of their review referred to in said letter to a date not more than five business days prior to the Option Closing Date, which would require any change in said letter if it were required to be dated the Option Closing Date.
(iv) At the Option Closing Date there shall have been delivered to you a certificate of each of the Co-Chairmen of the Board, the effect Chief Executive Officer and the President and the principal financial or accounting officer of whichIAT, dated the Option Closing Date, in any such case described aboveform and substance satisfactory to Bachner, isTally, Xxxxxxx & Xxxxxx LLP, counsel to the Underwriter, substantially the same in scope and substance as the reasonable judgment of certificates furnished to you at the Underwriters, so material and adverse as First Closing Date pursuant to make it impracticable Section 4(e) hereof.
(v) All proceedings taken at or inadvisable prior to proceed the Option Closing Date in connection with the sale and issuance of Securities the Option Notes shall be satisfactory in form and substance to you, and you and Bachner, Tally, Xxxxxxx & Xxxxxx LLP, counsel to the Underwriter, shall have been furnished with all such documents, certificates, and opinions as you may reasonably request in connection with this transaction in order to evidence the accuracy and completeness of any of the representations, warranties or Offering as contemplated herebystatements of IAT or its compliance with any of the covenants or conditions contained herein.
(g) On each of the Closing Date and the Option Closing Date, there shall have been duly tendered to the Underwriter the appropriate principal amount of Notes.
(h) The Underlying Shares shall have been approved for trading on the Nasdaq National Market.
(i) The Underwriters Trading in the Common Stock shall not have received a lock-up agreement from each Lock-Up Party, duly executed been suspended by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IVNasdaq National Market.
(j) The Shares are registered under Indenture and the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action Escrow Agreement shall have been provided to duly executed and delivered by the Underwriters. The Company and the Trustee and the Notes shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will been duly executed and delivered by the Company have received any information suggesting that and duly authenticated by the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligibleTrustee.
(k) FINRA The M/A Agreement shall have confirmed that it has not raised any objection with respect to been duly executed and delivered by the fairness and reasonableness of the underwriting terms and arrangementsCompany.
(l) No action shall have been taken and no statuteby the Commission or the NASD, rulethe effect of which would make it improper, regulation or order shall have been enacted, adopted or issued by at any federal, state or foreign governmental or regulatory authority that would, as of time prior to the Closing Date, prevent the issuance or sale for members of the Securities; NASD to execute transactions (as principal or agent) in the Notes and no injunction or order proceedings for the taking of any federal, state or foreign court such action shall have been issued that wouldinstituted or shall be pending, as or, to the knowledge of the Closing DateUnderwriter or IAT, prevent shall be contemplated by the issuance Commission or sale the NASD. IAT represents that at the date hereof it has no knowledge that any such action is in fact contemplated by the Commission or the NASD. IAT and each of the Securities Subsidiaries shall have advised the Underwriter of any NASD affiliation of any of its officers, directors, stockholders or materially and adversely affect or potentially materially and adversely affect the business or operations of the Companytheir affiliates.
(m) The Company shall have furnished delivered to the Underwriters and Underwriters’ Counsel Underwriter a letter from Xxxxxxxxx Xxxx & Company, P.C. addressed to the Company stating that they have not with such other certificatesrespect to the Company's or FSE's fiscal year ended December 31, opinions 1997 brought to the attention of any of the Company's or documents the Subsidiaries' management any weakness as they may have reasonably requesteddefined in Statement of Auditing Standard No. 60 "Communication of Internal Control Structure Related Matters Noted in an Audit" in any of the Company's or the Subsidiaries' internal controls.
(n) The CSRC All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall have concluded be deemed to be in compliance with the CSRC Filings provisions hereof only if they are in form and published substance reasonably satisfactory to the filing results on January 2, 2024 in respect Underwriter. If any of the CSRC Filings on its websiteconditions herein provided for in this Section shall not have been fulfilled as of the date indicated, this Agreement and all obligations of the Underwriter under this Agreement may be cancelled at, or at any time prior to, each Closing Date by the Underwriter notifying the Company of such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked cancellation in writing or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect by telegram at or prior to the Company’s proposed overseas listing pursuant applicable Closing Date. Any such cancellation shall be without liability of the Underwriter to the Revised Cybersecurity Review MeasuresIAT.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Securities Notes, as provided herein for in this Agreement, shall be subject to: to satisfaction of the following conditions prior to or concurrently with such purchase:
(ia) the accuracy All of the representations and warranties of the Company herein contained, as of the date hereof Issuers contained in this Agreement and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished made pursuant to the Underwriters provisions hereof shall be true and correct, or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement true and correct in all material respects where such representations and warranties are not qualified by materiality or omission, (iii) the performance by the Company of its obligations hereunder, and (iv) each of the following additional conditions.
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern TimeMaterial Adverse Effect, on the date of this AgreementAgreement and, in each case after giving effect to the transactions contemplated hereby, on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date. The Issuers shall have performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by them at or prior to the Closing Date.
(b) The Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b)under the Act and shall be reasonably acceptable to the Representatives and shall have been printed and copies distributed to the Underwriters on the date of this Agreement or at such later time and date as shall have been consented the Underwriters may determine. Any material required to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been be filed with the Commission pursuant to Rule 424(b) 433 under the Act has been filed within the applicable time period; and, at or prior to periods prescribed for such filings by Rule 433 under the Closing Date and the actual time of the Closing, no Act. No stop order suspending the effectiveness of the Registration Statement or any part thereof, notice objecting to its use or any amendment thereof, nor suspending the qualification or preventing the use exemption from qualification of the General Disclosure Package, the Prospectus or Notes in any Issuer Free Writing Prospectus jurisdiction shall have been issued; issued and no proceedings proceeding for the issuance of such an order that purpose shall have been initiated commenced or shall be pending or threatened; all requests of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federalgovernmental agency, state body, or foreign governmental or regulatory authority official that would, as of the Closing Date, prevent the issuance or sale of the SecuritiesNotes; and, except as disclosed in the Pricing Disclosure Package and Final Prospectus, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of the Issuers, threatened against any Issuer before any court or arbitrator or any governmental body, agency or official that, if adversely determined, could reasonably be expected to have a Material Adverse Effect; and no injunction stop order preventing the use of the Base Prospectus, the Preliminary Prospectus, the Pricing Disclosure Package, any Issuer Free Writing Prospectus or order of the Final Prospectus, or any federalamendment or supplement thereto, state or foreign court shall have been issued issued. The Company shall not have amended or supplemented the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Disclosure Package or the Final Prospectus or any Rule 462(b) Registration Statement unless the Underwriters shall previously have been advised of such proposed amendment or supplement at least two Business Days prior to the proposed use, and shall not have reasonably objected to such amendment or supplement.
(d) As of March 31, 2010, except as set forth in the Pricing Disclosure Package and Final Prospectus, neither the Company nor any Subsidiary shall have had any material liabilities or obligations, direct or contingent, that wouldwere not set forth in the Company’s consolidated balance sheet as of such date or in the notes thereto set forth in the Pricing Disclosure Package and Final Prospectus. Since March 31, 2010, except as set forth or contemplated in the Pricing Disclosure Package and Final Prospectus, (a) none of the Company or its Subsidiaries has (1) incurred any liabilities or obligations, direct or contingent, that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (2) entered into any material transaction not in the ordinary course of business, or (3) purchased any of its outstanding capital stock, (b) there shall not have been any material adverse change, prospective change, event or development in respect of the business, properties, prospects, results of operations or condition (financial or other) of the Company or its Subsidiaries that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (c) there shall have been no dividend or distribution of any kind declared, paid or made by the Company on any class of capital stock and (d) there shall not have been any material change in the capital stock, short-term debt or long-term debt of the Company or of any of the Subsidiaries, other than, as applicable, under any existing line of credit or revolving credit facility in the ordinary course of business.
(e) The Underwriters shall have received certificates, dated the Closing Date, signed by (x) the chief executive officer or the president and (y) the principal financial or accounting officer of each Issuer confirming, as of the Closing Date, prevent to their knowledge, the issuance matters set forth in paragraphs (a), (b), (c) and (d) of this Section 8.
(f) The Underwriters shall have received on the Closing Date opinions dated the Closing Date, addressed to the Underwriters, of (i) Xxxxxxxx Xxxxxxx LLP, counsel to the Company and certain of the Guarantors, substantially in the form of Exhibit A hereto in form and substance reasonably satisfactory to the Representatives and counsel to the Underwriters and (ii) local counsel in Indiana, Maryland, and Tennessee, in form and substance reasonably satisfactory to the Representatives and counsel to the Underwriters.
(g) The Underwriters shall have received on the Closing Date an opinion or opinions (satisfactory in form and substance to the Representatives) dated the Closing Date of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Underwriters.
(h) The Underwriters shall have received on the date hereof or as soon as practicable thereafter a “comfort letter” from Deloitte & Touche LLP, an independent registered public accounting firm with respect to the Company, dated the date of this Agreement, addressed to the Underwriters and the board of directors of the Company, in form and substance satisfactory to the Representatives and counsel to the Underwriters covering the financial and accounting information in the Registration Statement and the Pricing Disclosure Package. In addition, the Underwriters shall have received a “bring-down comfort letter” from Deloitte & Touche LLP, dated as of the Closing Date, addressed to the Underwriters and the board of directors of the Company and in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial and accounting information in the Final Prospectus and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than 2 days prior to the Closing Date, and otherwise in form and substance satisfactory to the Representatives and counsel to the Underwriters.
(i) The Issuers and the Trustee shall have executed and delivered the Indenture and the Underwriters shall have received copies, conformed as executed, thereof.
(j) All government authorizations required in connection with the issue and sale of the Securities or materially Notes as contemplated under this Agreement and adversely affect or potentially materially and adversely affect the business or operations performance of the CompanyIssuers’ obligations hereunder and under the Indenture and the Notes shall be in full force and effect.
(k) The Underwriters shall have been furnished with wiring instructions for the application of the proceeds of the Notes in accordance with this Agreement and such other information as they may reasonably request.
(l) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Underwriters, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions contained in this Agreement.
(m) The Company All agreements set forth in the representation letter of the Issuers to DTC relating to the approval of the Notes by DTC for “book-entry” transfer shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requestedbeen complied with.
(n) The CSRC All costs, fees and expenses (including, without limitation, legal fees and expenses) and other compensation payable to the Underwriters and their affiliates in connection with the offering of the Notes shall have concluded been, or simultaneously with the CSRC Filings and published the filing results on January 2, 2024 in respect issuance of the CSRC Filings on its websiteNotes shall be, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidatedpaid.
(o) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have been any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any Issuer’s debt by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Act.
(p) If there has been any amendment or supplement to the Final Prospectus, the Underwriters shall have been provided draft copies thereof at a reasonable time prior to the use thereof and the Underwriters shall not have objected to any such amendment or supplement.
(q) The Company is not Issuers shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. The documents required to apply be delivered by this Section 8 will be delivered at the office of counsel for cybersecurity review with the CAC with respect to Underwriters on the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review MeasuresClosing Date.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the --------------------------------------- several Underwriters to purchase and pay for the Securities Shares as provided herein shall be subject to: (i) to the accuracy accuracy, as of the date hereof and the Closing Date and any later date on which Option Shares are to be purchased, as the case may be, of the representations and warranties of the Company herein containedand the Selling Stockholders herein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company and the Selling Stockholders of its their respective obligations hereunder, hereunder and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 5:00 P.M., Eastern TimeNew York time, on the date following the date of this Agreement, or at such later time and date as shall have been be consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof you; and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus thereof shall have been issued; issued and no proceedings for the issuance of such an order that purpose shall have been initiated or, to the knowledge of the Company, the Selling Stockholders or threatened; all requests any Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement, Statement or the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the satisfaction of Underwriters’ satisfaction' Counsel.
(b) The Underwriters shall not have reasonably determined, All corporate proceedings and advised the Company, that the Registration Statementother legal matters in connection with this Agreement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement form of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not and the registration, authorization, issue, sale and delivery of the Shares, shall have been any Material Adverse Change or any development involving a prospective Material Adverse Changereasonably satisfactory to Underwriters' Counsel, whether or not arising from transactions and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in the ordinary course of businessthis Section.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(hc) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date orDate, if earlieror any later date on which Option Shares are to be purchased, as the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto)case may be, there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of earnings, operations, shareholders’ equity, properties business or business prospects of the CompanyCompany and its subsidiaries considered as one enterprise from that set forth in the Registration Statement or Prospectus, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described aboveyour sole judgment, is, in the reasonable judgment of the Underwriters, so is material and adverse as to make it and that makes it, in your sole judgment, impracticable or inadvisable to proceed with the sale public offering of Securities or Offering the Shares as contemplated hereby.by the Prospectus; and
(d) You shall have received on the Closing Date and on any later date on which Option Shares are to be purchased, as the case may be, the following opinion of counsel for the Company, dated the Closing Date or such later date on which Option Shares are to be purchased addressed to the Underwriters and with reproduced copies or signed counterparts thereof for each of the Underwriters, to the effect that:
(i) The Underwriters shall Company and each Significant Subsidiary (as that term is defined in Regulation S-X of the Act) has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization;
(ii) The Company and each Significant Subsidiary has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus;
(iii) The Company and each Significant Subsidiary is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction, if any, in which the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified or be in good standing would not have received a lock-up agreement from material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company and its subsidiaries considered as one enterprise. To such counsel's knowledge, the Company does not own or control, directly or indirectly, any corporation, association or other entity other than Knight Securities, Inc., Trimark Securities, Inc., KTG Holding Corporation and Knight Securities International Limited.
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus under the caption "Capitalization" as of the dates stated therein, the issued and outstanding shares of capital stock of the Company (including the Selling Stockholder Shares) have been duly authorized and validly issued and are fully paid and nonassessable, and, free and clear of any statutory preemptive rights or, to such counsel's knowledge, any similar rights;
(v) All issued and outstanding shares of capital stock of each Lock-Up PartySignificant Subsidiary of the Company have been duly authorized and validly issued and are fully paid and nonassessable, and, free and clear of any statutory preemptive rights or, to such counsel's knowledge, any similar rights;
(vi) The Firm Shares or the Option Shares, as the case may be, to be issued by the Company pursuant to the terms of this Agreement have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable, and free and clear of any statutory preemptive rights or, to such counsel's knowledge, any similar rights;
(vii) The Company has the corporate power and corporate authority to execute and deliver this Agreement and to perform its obligations hereunder;
(viii) This Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery by you, is a valid and binding agreement of the Company, enforceable in accordance with its terms, except insofar as indemnification provisions may be limited by applicable Lock-Up Partylaw and except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally or by general equitable principles;
(ix) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Act;
(x) The Registration Statement and the Prospectus, and each amendment or supplement thereto as of the effective date of the Registration Statement, complied as to form in all material respects with the requirements of the Act and the applicable Rules and Regulations, except that in each case substantially such counsel need express no opinion as to the financial statements, schedules and other financial data included therein or excluded therefrom;
(xi) The information in the form attached as Annex IV.
(j) The Shares are registered Prospectus under the Exchange Act and, as captions "Risk Factors We are Subject to Extensive Government Regulation," "Risk Factors We Are Subject to Net Capital Requirements," "Risk Factors Certain Provisions of Delaware Law and Our Charter May Make a Takeover of Our Company More difficult," "Risk Factors Future Sales by Existing Stockholders Could Depress the Market Price of Our Common Stock," "Business-Government Regulation," "Business - Net Capital Requirements," "Business -Legal Proceedings," "Management Stock Option Plans," "Certain Transactions," "Description of Capital Stock," "Shares Eligible for Future Sale" and in items 14 and 15 of the Closing DateRegistration Statement, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration extent that any of the Shares foregoing purport to summarize certain provisions of the documents statutes and regulations referred to therein, has been reviewed by such counsel and fairly presents the information disclosed therein in all material respects; and the forms of certificates evidencing the Common Stock and filed as exhibits to the Registration Statement are in proper form under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.Delaware General Corporation Law;
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters to purchase and pay for Underwritten Securities pursuant to the Securities as provided herein shall be applicable Terms Agreement are subject to: (i) to the accuracy of the representations and warranties of the Company herein contained, as to the accuracy of the date hereof and as statements of the Closing Date or the Additional Closing Date, (ii) the absence from Company’s officers made in any certificates, opinions, written statements or letters furnished certificate pursuant to the Underwriters or provisions hereof, to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of all of its covenants and other obligations hereunder, and (iv) each of to the following additional further conditions.:
(a) The At Closing Time, (i) the Registration Statement shall have has become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no issued under the 1933 Act or proceedings for the issuance of such an order shall have been therefor initiated or threatened; all requests threatened by the Commission, and any request on the part of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement reasonable satisfaction of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions each preliminary prospectus and negative assurance letter from DLA Piper UK LLPthe Prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B), U.S. legal counsel (iii) any Final Term Sheet and any other material required to be filed by the Company pursuant to Rule 433(d) of the 1933 Act Regulations shall have been filed with the Commission within the applicable time periods prescribed for such filings under such Rule 433, (iv) the Company shall have paid the required Commission filing fees relating to the Underwritten Securities within the time period required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b), (v) if Preferred Shares or Depositary Shares are being offered, the rating assigned by any nationally recognized statistical rating organization to any preferred stock of the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of including such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date Preferred Shares or any Additional Closing DateDepositary Shares, as the case may be, as of the date of the applicable Terms Agreement shall not have been lowered or withdrawn since such date nor shall any such rating organization have publicly announced that it has any such preferred stock of the Company under surveillance or review, (vi) there shall not have come to your attention any facts that would cause you to believe that the Prospectus, at the time it was required to be delivered or made available to purchasers of the Underwritten Securities, included 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 existing at such time, not misleading, and (iivii) negative assurance letterthe Underwritten Securities or the Common Stock issuable upon conversion thereof, addressed to the Underwriters and dated as applicable, in accordance with Section 3(l) hereof, shall be approved for listing on or before the Closing Date or any Additional Time in accordance with such Section 3(l).
(b) At Closing DateTime, as the case may be, and the Company you shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written received:
(1) The favorable opinion, addressed to dated as of Closing Time, of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may beCompany, in form and substance satisfactory to counsel for the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing DateUnderwriters, to the effect that: :
(i) If applicable, upon execution and delivery of the conditions set forth Depositary Receipts pursuant to the terms of the Deposit Agreement, the persons in subsection (a) of this Section 7 have been satisfied, whose names such Depositary Receipts are registered will be entitled to the rights specified therein and in the Deposit Agreement.
(ii) as of the date hereof and as of the Closing DateIf applicable, the representations Common Stock Warrants will constitute legally valid and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and binding obligations of the Company entitled to the benefits provided by the Warrant Agreement under which they are to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of businessissued.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters of any Designated Securities under the Pricing Agreement relating to purchase and pay for the such Designated Securities as provided herein shall be subject to: (i) subject, in the accuracy discretion of the Representatives, to the condition that all representations and warranties and other statements of the Company herein containedCorporation in or incorporated by reference in the Pricing Agreement relating to such Designated Securities are, at and as of the date hereof of such Pricing Agreement and as of the Closing Date or Time of Delivery for such Designated Securities, true and correct, the Additional Closing Date, (ii) condition that the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company Corporation shall have performed all of its obligations hereunderhereunder theretofore to be performed, and (iv) each of the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, Prospectus as amended or at such later time and date as shall have been consented to supplemented in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating relation to the description of the applicable Designated Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time periodperiod prescribed for such filing by the rules and regulations under the 1933 Act and in accordance with Section 4(a) hereof; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus thereof shall have been issued; issued and no proceedings proceeding for the issuance of such an order that purpose shall have been initiated or threatenedthreatened by the Commission; and all requests for additional information on the part of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.Representatives' reasonable satis- faction;
(b) The Counsel for the Underwriters shall not have reasonably determinedfurnished to the Representatives such opinion or opinions, and advised dated such Time of Delivery, with respect to the Companyincorporation of the Corporation, that the validity of the Designated Securities being delivered at such Time of Delivery, the Registration Statement, the General Disclosure Package or the ProspectusProspectus and such related matters as you may reasonably request, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters such counsel shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of received such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents papers and information as such counsel they may reasonably request to enable them to pass on upon such matters. XxxXxxxxx Law Offices, PRC counsel ;
(c) Counsel for the Corporation satisfactory to the UnderwritersRepresentatives (it being understood that Xxxxxxx X. Xxxxx, Xx., Esq., Corporate Counsel for the Corporation (or another senior corporate counsel designated by the Corporation shall be deemed to be reasonably satisfactory to the Representatives) shall have furnished to the Representative its Representatives their written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may beTime of Delivery for such Designated Securities, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing DateRepresentatives, to the effect that: (:
i) The Corporation has been duly incorporated and is validly existing as a corporation in good standing under the conditions set forth laws of the Commonwealth of Virginia, with corporate power and authority to own its properties and conduct its business as described in subsection (a) the Prospectus as amended or supplemented and the Corporation has been duly qualified as a foreign corporation for the transaction of this Section 7 have been satisfied, (business and is in good standing under the laws of each other jurisdiction in which the conduct of its business or the ownership of its property requires such qualification;
ii) as To the best of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof such counsel's knowledge there are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any no legal or governmental proceedingproceedings pending to which the Corporation, (v) no stop order suspending NSRC or Conrail is a party or of which any property of the effectiveness of Corporation, NSRC or Conrail is the subject required to be described in the Registration Statement or any amendment thereof has been issued and the Prospectus which is not described as required; to the best of such counsel's knowledge, no such proceedings therefor have been initiated are threatened or contemplated by governmental authorities or threatened by the Commission, (viothers;
iii) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement This Agreement and the Prospectus pursuant Pricing Agreement with respect to the Regulations which are not so includedDesignated Securities have been duly authorized, executed and (viidelivered by the Corporation;
iv) subsequent to the respective dates as of which information is given in the Registration Statement The issuance and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each sale of the Closing DateDesignated Securities have been duly authorized by the Corporation; the Underwriters' Securities have been duly executed, issued and delivered by the Corporation and when authenticated in accordance with the terms of the Indenture and paid for by the Underwriters shall have received a certificate of in accordance with the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date terms of this Agreement and on the Closing DatePricing Agreement, will be valid and binding obligations of the Corporation enforceable in accordance with their terms and entitled to the benefits of the Indenture, except (a) to the extent that enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity) and (b) that such counsel expresses no opinion as to Section 512 of the Indenture;
v) The Indenture applicable to the Designated Securities has been duly authorized, executed and delivered by the Corporation and is a valid and binding agreement of the Corporation, enforceable against the Corporation in accordance with its terms, except (a) to the extent that enforcement thereof may be limited by (i) bankruptcy, in solvency, reorganization, moratorium, fraudulent transfer or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity) and (b) that such counsel expresses no opinion as to Section 512 of the Indenture; and the Indenture has been qualified under the Trust Indenture Act;
vi) The issuance and sale of the Designated Securities and the compliance by the Corporation with all of the provisions of the Designated Securities, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (Indenture, this Agreement and the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants Pricing Agreement with respect to the Company within Designated Securities and the meaning consummation of the Act transactions herein and all applicable Regulationstherein contemplated will not conflict with or result in a breach of any of the terms or pro visions of, and statingor constitute a default under, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given result in the Prospectuscreation or imposition of any lien, as charge or encumbrance upon any of a date not more than five (5) days prior the property or assets of the Corporation or NSRC pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such date)counsel to which the Corporation is a party or by which the Corporation or NSRC is bound or to which any of the property or assets of the Corporation or NSRC is subject, other than those conflicts, breaches or defaults that would not have a Material Adverse Effect, nor will such actions result in any violation of the conclusions and findings provisions of the Articles of Incorporation or Regulations of the Corporation or any statute or any order, rule or regulation known to such firm counsel of any court or governmental agency or body having jurisdiction over the Corporation or NSRC or any of their properties, other than those violations that would not have a Material Adverse Effect, except that counsel expresses no opinion with respect to the financial information and other matters relating State securities or Blue Sky laws or with respects to the Registration Statement covered by such letter.rights to indemnity and contribution under the Underwriting Agreement;
(gvii) On the date No consent, approval, authorization, order, registration or qualification of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer or with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in court or governmental agency or body is required for the reasonable judgment of the Underwriters, so material issue and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction Designated Securities or order the consummation by the Corporation of any federalthe transactions contemplated by this Agreement or such Pricing Agreement or the Indenture, state or foreign court shall except such as have been issued that wouldobtained under the 1933 Act and the Trust Indenture Act and such consents, approvals, authorizations, orders, registrations or qualifications as may be required under state securities or Blue Sky laws or under the laws of foreign jurisdictions in connection with the purchase and distribution of the Closing Date, prevent Designated Securities by the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.Underwriters;
(mviii) The Company shall have furnished statements set forth in the Underwriters Prospectus under the caption "Description of Securities" and Underwriters’ Counsel with such other certificates, opinions under the caption "Description of Designated Securities" (or documents comparable caption) in the Prospectus as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 amended or supplemented in respect of the CSRC Filings Designated Securities, insofar as they purport to summarize certain provisions of the laws and documents referred to therein, fairly summarize such provisions in all material respects;
ix) The documents incorporated by reference in the Prospectus as amended or supplemented, when they were filed with the Commission appeared on its websitetheir face to be appropriately responsive in all material respects to the requirements of the 1934 Act and the rules and regulations thereunder, except that such counsel expresses no opinion as to the financial statements, related schedules and other financial data, and such notice counsel does not assume any responsibility for the accuracy, completeness or fairness of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked the statements contained in the documents incorporated by reference in the Prospectus as amended or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.supplemented; and
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters Underwriter to purchase and pay for the Securities Firm Shares and the Additional Shares, as provided herein herein, shall be subject to: (i) to the accuracy of the representations and warranties of the Company herein contained, as of the date hereof and as of the Closing Date or (for purposes of this Section 7 “Closing Date” shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, (ii) if different, for the Additional Shares), to the absence from any certificates, opinions, written statements or letters furnished to the Underwriters you or to Underwriters’ Underwriter’s Counsel pursuant to this Section 7 of any material misstatement or omission, (iii) to the performance by the Company of its obligations hereunder, and (iv) to each of the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(bSection 4(a) within the applicable time periodhereof; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereofpost-effective amendment thereto, or any amendment thereof, nor and no stop order suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Preliminary Prospectus, any Issuer Free Writing Prospectus or otherwisethe Prospectus, shall have been issued by the Commission and no proceedings therefor shall have been initiated or threatened by the Commission; no notice of objection to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been issued by the Commission; all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction; if the Underwriters’ satisfactionCompany has elected to rely on Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m. (Washington, D.C. time) on the date of this Agreement; and all necessary foreign and domestic regulatory or stock exchange approvals shall have been received.
(b) The Underwriters shall not have reasonably determined, and advised At the Company, that the Registration StatementClosing Date, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters Underwriter shall have received, in form satisfactory to received the Underwriters and Underwriters’ counsel written opinion of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK Xxxxxx LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the UnderwritersUnderwriter in the form attached hereto as Annex I.
(c) At the Closing Date, the Underwriter shall have received the written opinion of Xxxxxxx Xxxxxx Bailhache, Bermuda counsel for the Company, dated the Closing Date addressed to the Underwriter in the form attached hereto as Annex II.
(d) All proceedings taken in connection with the sale of the Firm Shares and the Additional Shares as herein contemplated shall be satisfactory in form and substance to the Underwriter and to Underwriter’s Counsel, and (iii) legal opinions the Underwriter shall have received from Xxx Xxx Law Offices, PRC legal counsel to the CompanyUnderwriter’s Counsel a favorable written opinion, dated as of the Closing Date. Each , with respect to the issuance and sale of the opinion shall provide assurance to parties that Shares, the legal aspects of Registration Statement, the transaction have been properly examined Pricing Disclosure Package and deemed compliant with applicable laws, regulations, the Prospectus and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, other related matters as the case Underwriter may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may berequire, and the Company shall have furnished to such counsel Underwriter’s Counsel such documents and information as such counsel they may reasonably request to enable for the purpose of enabling them to pass on upon such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated .
(e) At the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters you shall have received certificates a certificate of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”)Company, substantially in the form attached hereto as Annex I and dated as of the Closing Date, Date to the effect that: that (i) the conditions condition set forth in subsection (a) of this Section 7 have has been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 1 hereof are accurate, (iii) as of the Closing Date, Date all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) subsequent to the respective dates as of which information is given in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto) the Company has not sustained any material loss or interference with its businessestheir respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and Statement, the Pricing Prospectus or the Prospectus pursuant to the Rules and Regulations which are that have not so includedbeen included or incorporated therein as required, and (viivi) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, Pricing Disclosure Package (exclusive of any amendment or supplement thereto) there has not been any Material Adverse Change material adverse change or any development involving a prospective Material Adverse Changematerial adverse change, whether or not arising from transactions in the ordinary course of business.
, in or affecting (ex) At each of the Closing Datebusiness, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company condition (the “Secretary’s Certificate”financial or otherwise), substantially in the form attached hereto as Annex II and dated the Closing Dateresults of operations, certifying: (i) that each of the Charter and Bylaws is true and completestockholders’ equity, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing properties or prospects of the Company; and (ivy) as to the incumbency of the officers long-term debt or share capital of the Company. The documents referred to ; or (z) the Offering or consummation of any of the other transactions contemplated by this Agreement, the Registration Statement, the Pricing Disclosure Package and the Prospectus and (vii) certain financial information contained in such certificate shall be attached to such certificatethe Registration Statement, the Pricing Disclosure Package and the Prospectus is accurate.
(f) On At the time this Agreement is executed and at the Closing Date, you shall have received a comfort letter, from Deloitte AS, independent registered public accounting firm, dated, respectively, as of the date of this Agreement and on as of the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, Date addressed to the Underwriters Underwriter and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXXUnderwriter and Underwriter’s Counsel.
(hg) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus Pricing Disclosure Package (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares share capital or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholdersstockholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism accident or other calamitycalamity at any of the properties owned or leased by the Company, the effect of which, in any such case described above, is, in the reasonable judgment of the UnderwritersUnderwriter, so material and adverse as to make it impracticable or inadvisable to proceed with the sale Offering on the terms and in the manner contemplated in the Pricing Disclosure Package (exclusive of Securities or Offering as contemplated herebyany supplement).
(ih) The Underwriters the Underwriter shall have received a duly executed lock-up agreement from each Lock-Up Party, duly executed by person who is a director or officer of the applicable Lock-Up PartyCompany and each employee of Scandic American Shipping Ltd. listed under the caption “Management” in the Pricing Prospectus and the Prospectus, in each case substantially in the form attached hereto as Annex IVIII.
(ji) The Shares are registered under the Exchange Act and, as of At the Closing Date, the Shares shall be listed and admitted and authorized have been approved for trading listing upon notice of issuance on the Nasdaq Global Market and satisfactory evidence of such action NYSE.
(j) At the Closing Date, the Underwriter shall have been provided continue to be eligible to rely on an exemption from filing with the FINRA with respect to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligibleOffering.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the SecuritiesShares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the CompanyShares.
(ml) The Company shall have furnished the Underwriters Underwriter and Underwriters’ Underwriter’s Counsel with such other certificates, opinions or other documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect . If any of the CSRC Filings on its websiteconditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, and such notice or if any of acceptance and/or filing results published not having otherwise been rejectedthe certificates, withdrawnopinions, revoked written statements or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect letters furnished to the CompanyUnderwriter or to Underwriter’s proposed overseas listing Counsel pursuant to this Section 7 shall not be satisfactory in form and substance to the Revised Cybersecurity Review MeasuresUnderwriter and to Underwriter’s Counsel, all obligations of the Underwriter hereunder may be cancelled. Notice of such cancellation shall be given to the Company in writing, or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
Appears in 1 contract
Samples: Underwriting Agreement (Nordic American Tanker Shipping LTD)
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters to purchase and pay for Underwritten Securities pursuant to the Securities as provided herein shall be Terms Agreement are subject to: (i) to the accuracy of the representations and warranties on the part of the Company herein contained, as to the accuracy of the date hereof and as statements of the Closing Date or the Additional Closing Date, (ii) the absence from Company’s officers made in any certificates, opinions, written statements or letters certificate furnished pursuant to the Underwriters or provisions hereof, to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of all of its covenants and other obligations hereunder, hereunder and (iv) each of to the following additional further conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with by the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed Company with the Commission pursuant to Rule 424(b) within the applicable time periodperiod prescribed for such filing by the 1933 Act Regulations; and, at and each Permitted Free Writing Prospectus shall have been filed by the Company with the Commission pursuant to Rule 433 within the applicable time period prescribed for such filing by the 1933 Act Regulations (to the extent so required).
(b) On or after the Applicable Time and prior to the applicable Closing Date Time (i) no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, (ii) the rating assigned by Xxxxx’x Investors Service, Inc., Standard & Poor’s Corporation, Fitch, Inc. or any other nationally-recognized credit rating agency to any long-term debt securities of the Company as of the date of the Terms Agreement shall not have been lowered since the execution of such Terms Agreement and (iii) there shall not have come to the Representatives’ attention any facts that would cause the Representatives to believe that the Prospectus, together with the General Disclosure Package, at the time it was required to be delivered to a purchaser of the Underwritten Securities, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading.
(c) At the applicable Closing Time, the Representatives shall have received:
(1) The favorable opinion, dated as of the applicable Closing Time, of Shearman & Sterling LLP, counsel for the Company, in form and substance satisfactory to the Representatives, to the effect that:
(i) The Company is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware.
(ii) This Agreement and the actual time Delayed Delivery Contracts, if any, have been duly authorized, executed and delivered by the Company.
(iii) The Indenture and the Warrant Agreement have been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Trustee, in the case of the ClosingIndenture, and the Warrant Agent, in the case of the Warrant Agreement, constitute a valid and binding obligation of the Company, enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and except as enforcement thereof is subject, in the case of Underwritten Securities denominated in a foreign currency or currency unit, to provisions of law that require that a judgment for money damages rendered by a court in the United States be expressed only in United States dollars.
(iv) The Underwritten Securities have been duly authorized by the Company and, when executed and authenticated as specified in the Indenture in the case of the Senior Securities or Subordinated Securities, or the Warrant Agreement, in the case of Debt Warrants, and delivered against payment pursuant to this Agreement, the Underwritten Securities will be valid and binding obligations of the Company entitled to the benefits of the Indenture, in the case of Senior Securities or Subordinated Securities, or the Warrant Agreement, in the case of Debt Warrants, and enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and except as enforcement thereof is subject, in the case of Underwritten Securities being denominated in a foreign currency or currency unit, to provisions of law that require that a judgment for money damages rendered by a court in the United States be expressed only in United States dollars; and the Warrant Securities, if any, have been duly authorized by the Company and, when executed and authenticated as specified in the Indenture, and delivered against payment pursuant to the Warrant Agreement, the Warrant Securities will be valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and except as enforcement thereof is subject, in the case of Warrant Securities being denominated in a foreign currency or currency unit, to provisions of law that require that a judgment for money damages rendered by a court in the United States be expressed only in United States dollars.
(v) The Underwritten Securities, the Indenture and the Warrant Agreement conform in all material respects as to legal matters to the descriptions thereof in the Registration Statement, the General Disclosure Package and the Prospectus.
(vi) The Indenture has been duly qualified under the 0000 Xxx.
(vii) If the Underwritten Securities to which a Terms Agreement relates are convertible into shares of Common Stock, the shares of Common Stock issuable upon conversion thereof have been duly authorized and reserved for issuance upon such conversion by all necessary corporate action and when issued and delivered in accordance with the provisions of this Agreement relating thereto, will be validly issued, fully paid and nonassessable, and the issuance of such shares upon such conversion will not be subject to preemptive rights.
(viii) The Registration Statement is effective under the 1933 Act and, to the best of their knowledge and information, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or any part thereofproceedings therefor initiated or threatened by the Commission.
(ix) The Registration Statement, at the Applicable Time, and the Prospectus, and each amendment or any amendment thereof, nor suspending supplement thereto (except for the financial statements and other financial data included therein or preventing omitted therefrom and the use Statement of Eligibility and Qualification of the General Disclosure PackageTrustee on Form T-1, as to which such counsel need express no opinion), as of their respective dates, excluding the Prospectus or any Issuer Free Writing Prospectus shall documents incorporated by reference therein, appear on their face to have been issued; no proceedings for appropriately responsive in all material respects to the issuance of such an order shall have been initiated or threatened; all requests requirements of the Commission for additional information 1933 Act and the 1933 Act Regulations and the 0000 Xxx.
(to be included x) The documents incorporated by reference in the Registration Statement, the General Disclosure PackagePackage and the Prospectus (except for the financial statements and other financial data included therein or omitted therefrom, as to which such counsel need express no opinion), as of the Prospectusdates they were filed with the Commission, any Issuer Free Writing Prospectus or otherwise) shall appear on their face to have been complied with appropriately responsive in all material respects to the Underwriters’ satisfactionrequirements of the 1934 Act and the rules and regulations of the Commission thereunder.
(bxi) The Underwriters execution and delivery of this Agreement, the fulfillment of the terms herein set forth and the consummation of the transactions herein contemplated will not conflict with the charter or by-laws of the Company. Such opinion shall also state that such counsel have not have reasonably determinedverified, and advised are not passing upon and do not assume any responsibility for, the Companyaccuracy, that completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package Statement or the Prospectus, other than those mentioned in (v) of subsection 4(c)(1) of this Section. Such counsel have, however, generally reviewed and discussed such statements with certain officers of the Company and its auditors. In the course of such review and discussion, no facts have come to the attention of such counsel that has caused such counsel to believe (i) that the Registration Statement or any amendment thereof thereto (except for the financial statements and other financial data included therein or supplement theretoomitted therefrom and the Statement of Eligibility and Qualification of the Trustee on Form T-1, or any Issuer Free Writing Prospectusas to which such counsel need not comment), contains at the Applicable Time, contained an untrue statement of a material fact which, in the Underwriters’ reasonable opinion, is material, or omits omitted to state a material fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading or (ii) that the Prospectus or any amendment or supplement thereto (except for the financial statements and other financial data included therein or omitted therefrom, as to which such counsel need not comment), at the time the Prospectus was issued, at the time any such amended or supplemented Prospectus was issued or at the applicable Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the General Disclosure Package, as of the Applicable Time or as of the applicable Closing Time, included 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.
(c2) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Companyfavorable opinion, dated as of the applicable Closing Date and addressed Time, of the General Counsel of the Company to the Underwriterseffect that (i) the Company is duly qualified to transact business and is in good standing in the states in which its manufacturing plants are located, and (iiiii) legal opinions from Xxx Xxx Law Officesthe execution and delivery of this Agreement, PRC legal the Indenture and the Warrant Agreement, the fulfillment of the terms herein and therein set forth and the consummation of the transactions herein and therein contemplated will not conflict with or constitute a breach of or default under, the charter or by-laws of the Company or any agreement, indenture or other instrument known to such counsel of which the Company or any of its subsidiaries is a party or by which it or any of them is bound, or any law, administrative regulation or administrative or court order known to such counsel to be applicable to the Company.
(3) The favorable opinion, dated as of the applicable Closing Date. Each Time, of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law Sidley Austin LLP, counsel to for the Underwriters, shall have furnished with respect to the Representative its matters set forth in (i) written opinionto (vi), addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may beinclusive, and (iiviii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be(ix), and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Officeslast paragraph, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representativeof subsection (c)(1) of this Section.
(d) The Underwriters At the applicable Closing Time, there shall not have received certificates been, since the date of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed Terms Agreement or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to since the respective dates as of which information is given in the Registration Statement and General Disclosure Package or the Prospectus, there has not been any Material Adverse Change material adverse change in the financial condition of the Company and its subsidiaries considered as one enterprise, or any development involving a prospective Material Adverse Changein the results of operations or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising from transactions in the ordinary course of business.
(e) At each of , and the Closing Date, the Underwriters Representatives shall have received a certificate of the Company signed by President or a Vice President of the Secretary Company, dated as of such Closing Time, to the effect that there has been no such material adverse change and to the effect that the other representations and warranties of the Company contained in Section 1 are true and correct.
(e) The Representatives shall have received from Deloitte & Touche LLP or other independent certified public accountants acceptable to the “Secretary’s Certificate”)Representatives a letter, substantially in the form attached hereto dated as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions date of the Company’s Board of Directors relating to the Offering are Terms Agreement and delivered at such time, in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificateform heretofore agreed to.
(f) On the date of this Agreement and on the Closing Date, the Underwriters The Representatives shall have received a “comfort” letter from Xxxxxx Asia CPAs Deloitte & Touche LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are or other independent certified public accountants with respect acceptable to the Company within the meaning Representatives a letter, dated as of the Act and all applicable RegulationsClosing Time, and statingreconfirming or updating the letter required by subsection (e) of this Section to the extent that may be reasonably requested by the Representatives, as of such except that the specified date (or, with respect referred 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 shall be not more than five (5) three business days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letterClosing Time.
(g) On At the date applicable Closing Time, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of this Agreement enabling them to pass upon the issuance and on sale of the Closing DateUnderwritten Securities as herein contemplated and related proceedings or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company shall have furnished to in connection with the Representative, a certificate on behalf issuance and sale of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, Underwritten Securities as herein contemplated shall be satisfactory in form and substance reasonably satisfactory to the Representative, substantially Representatives and counsel for the Underwriters. If any condition specified in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there Section shall not have been any change in fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Ordinary Shares or long-term debt of Representatives by notice to the Company at any time at or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited prior to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its websiteTime, and such notice termination shall be without liability of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidatedany party to any other party except as provided in Section 5.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 1 contract
Samples: Terms Agreement (Deere & Co)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder are subject to purchase the accuracy, as of the date hereof, the Closing Date and pay for any settlement date (as if made at the Securities Closing Date or any settlement date, as provided herein shall be subject to: (i) the accuracy case may be), of the representations and warranties of the Company herein containedcontained herein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, hereunder and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form Section 4(a) hereof; all filings required by Rule 424(b) or Rule 433 of the Prospectus containing information relating to the description of the Securities Rules and the method of distribution and similar matters Regulations shall have been filed with the Commission pursuant to Rule 424(b) made within the applicable time period; andperiods prescribed by such Rules, at or prior to and no such filings will have been made without the Closing Date and the actual time consent of the Closing, Representatives; no stop order suspending the effectiveness of the Registration Statement or any part thereofamendment or supplement thereto, preventing or any amendment thereof, nor suspending or preventing the use of the General Disclosure Packageany Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or the Prospectus, or suspending the qualification of the Securities for offering or sale in any jurisdiction shall have been issued; no proceedings for the issuance of any such an order shall have been initiated or threatenedthreatened pursuant to Section 8A of the Securities Act; all requests no notice of objection of the Commission to use the Registration Statement or any post-effective amendment thereto shall have been received by the Company; and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been disclosed to the Representatives and complied with to the Representatives’ satisfaction.
(b) No Underwriter shall have been advised by the Company, or shall have discovered and disclosed to the Company, that the Registration Statement, the General Disclosure Packagemost recent Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, thereto contains an untrue statement of fact which, in the opinion of the Representatives or of counsel to the Underwriters’ reasonable opinion, is material, or omits to state a any fact which, in the opinion of counsel to the Underwriters’ reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) The Underwriters Representatives shall have receivedreceived from Skadden, in form satisfactory to Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & RiegelsCompany, Cayman Islands counsel to the Company dated as of the Closing Date and opinion or opinions, addressed to the Underwriters, dated the Closing Date, in form and substance satisfactory to the Representatives and substantially in the form of Exhibit B.
(iid) legal opinions and negative assurance letter The Representatives shall have received from DLA Piper UK LLP, U.S. legal counsel for the Company’s General Counsel the opinion or opinions, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each , in form and substance satisfactory to the Representatives and substantially in the form of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion Exhibit C.
(e) The Representatives shall have been provided to the Underwriters with consent received from such counsel. VCL Law Cravath, Swaine & Xxxxx LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinionsuch opinion or opinions, addressed to the Underwriters and Underwriters, dated the Closing Date or any Additional Closing Dateand in form and substance satisfactory to the Representatives, with respect to the Securities, Registration Statement, Prospectus and Disclosure Package and other related matters as the case Representatives may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may bereasonably require, and the Company shall have furnished to such counsel such documents and information as such counsel they may reasonably request to enable for the purpose of enabling them to pass on upon such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, .
(f) The Representatives shall have furnished to the Representative its written opinionreceived a certificate, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of signed by the Chief Executive Officer Officer, the President or any Vice President of the Company and by the Chief Financial Officer or Chief Accounting Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) there shall not have been, since the conditions set forth date hereof, since the Applicable Time or since the respective dates as of which information is given in subsection (a) of this Section 7 have been satisfiedthe Prospectus or the Disclosure Package, any Company Material Adverse Effect or to the Company’s knowledge, any Seller Material Adverse Effect; (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 1 hereof are accuratetrue and correct with the same force and effect as though expressly made at and as of Closing Date, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company has complied with this Agreement and satisfied all conditions to be performed or complied with satisfied hereunder on at or prior thereto have been duly performed or complied with, to the Closing Date 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 or contemplated by the Commission.
(g) Except as described in the most recent Preliminary Prospectus and the Prospectus, (i) neither the Company has not sustained nor any material of the Company’s subsidiaries or, to the knowledge of the Company, the Seller, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its businessesbusiness from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, order or decree or (vii) no stop order suspending since such date there shall not have been any change in the effectiveness capital stock or long-term debt of the Registration Statement Company or any amendment thereof has been issued and no proceedings therefor have been initiated of the Company’s subsidiaries or threatened by the Commissionany change, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Changechange, whether in or not arising from transactions affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, business or prospects of the Company and the Company’s subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the ordinary course judgment of businessthe Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities or on the terms and in the manner contemplated in the Prospectus.
(eh) At Concurrently with the execution of this Agreement, the Representatives shall have received with respect to each of the Closing DateCompany, Health Net and the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”)Seller from KPMG LLP, substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Dateindependent registered public accounting firm, or Deloitte & Touche, LLP, the Underwriters shall have received independent registered public accounting firm of Health Net and the Seller, as applicable, a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letterinitial comfort letters”) as of each such date, addressed to the Underwriters Representatives on behalf of the Underwriters, dated the date hereof, and in form and substance satisfactory to the Underwriters and Underwriters’ CounselRepresentatives, each (i) confirming that they are an independent certified registered public accountants with respect to the Company accounting firm within the meaning of the Securities Act and all are in compliance with the applicable Regulations, requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission (except in the case of Deloitte & Touche’s comfort letter with respect to the Seller) and (ii) stating, as of such the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified historical and pro forma financial information of the Company, Health Net and the Purchased Assets, as applicable, is given in the most recent Preliminary Prospectus, as of a date not more than five (5) three days prior to such datethe date hereof), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement ordinarily covered by such letteraccountants’ “comfort letters” to underwriters in connection with registered public offerings.
(gi) On The Representatives shall have received a “bring-down comfort” letter with respect to each of the date Company, Health Net and the Seller from KPMG LLP, the Company’s independent registered public accounting firm, and Deloitte & Touche, LLP, the independent registered public accounting firm of this Agreement Health Net and the Seller, as applicable (the “bring-down comfort letters”), addressed to the Representatives on behalf of the Underwriters, dated the Closing Date, the Company shall have furnished and in form and substance satisfactory to the RepresentativeRepresentatives, a certificate on behalf each (i) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission (except in the case of Deloitte & Touche’s comfort letter with respect to the Seller), (ii) stating, as of the date of the bring-down comfort letters (or, with respect to matters involving changes or developments since the respective dates as of which specified historical and pro forma financial information of the Company, dated Health Net and the respective dates Purchased Assets, as applicable, is given in the Prospectus, as of delivery thereof and addressed a date not more than three days prior to the Underwritersdate of the bring-down comfort letters), the conclusions and findings of its Chief Financial Officer such firm with respect to certain the financial date contained information and other matters covered by the initial comfort letters and (iii) confirming in all material respects the conclusions and findings set forth in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXXinitial comfort letters.
(hj) Prior to or on the Closing Date or any settlement date, the Representatives shall have been furnished by the Company such additional documents and certificates as the Representatives or counsel for the Underwriters may reasonably request.
(k) Subsequent to the execution and delivery of this Agreement and prior Agreement, (i) no downgrading shall have occurred in the rating accorded to the Closing Date ordebt securities of the Company, if earlieror any of the Company’s subsidiaries by any “nationally recognized statistical rating organization” (as that term is defined in Section 3(a)(62) of the Exchange Act), the dates as of which information is given in the Registration Statement and (exclusive ii) no such organization shall have publicly announced that it has under surveillance or review with possible negative implications its rating of any amendment thereofof the Company’s debt securities.
(l) Subsequent to the execution and the Prospectus (exclusive delivery of any supplement thereto)this Agreement, there shall not have been occurred any change of the following: (i) trading in securities generally on the New York Stock Exchange, the Nasdaq Global Market or the American Stock Exchange or in the Ordinary Shares over-the-counter market, or long-term debt trading in any securities of the Company on any exchange or any change or development involving a change, whether or not arising from transactions in the ordinary course over-the-counter market, shall have been suspended or materially limited or the settlement of businesssuch trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction; (ii) a banking moratorium shall have been declared by federal or state authorities; (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States; or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the UnderwritersRepresentatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale offering of the Securities or materially on the terms and adversely affect or potentially materially and adversely affect in the business or operations of manner contemplated in the CompanyProspectus.
(m) The Company New York Stock Exchange shall have furnished approved the Underwriters and Underwriters’ Counsel with such other certificatesSecurities for listing, opinions or documents as they may have reasonably requestedsubject only to official notice of issuance.
(n) The CSRC shall have concluded A letter or letters, substantially in the CSRC Filings and published form of Exhibit D hereto (the filing results on January 2, 2024 in respect “Lock-Up Agreements”) of the CSRC Filings listed directors and officers of the Company set forth on its websiteSchedule IV, delivered to the Underwriter on or before the date of this Agreement, shall be in full force and such notice effect on the Closing Date. All opinions, certificates, letters and documents referred to in this Section 6 will be in compliance with the provisions of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) this Agreement only if they are satisfactory in form and substance to the Representatives and to counsel for the Underwriters. The Company is not required to apply for cybersecurity review with the CAC with respect will furnish to the Company’s proposed overseas listing pursuant to Representatives conformed copies of such opinions, certificates, letters and other documents in such number as the Revised Cybersecurity Review MeasuresRepresentatives will reasonably request.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Securities Firm Shares, and the Underwriters’ option to purchase the Option Shares, as provided herein herein, shall be subject to: (i) the accuracy of the representations and warranties of the Company herein contained, as of the date hereof and as of the Closing Date Date, or the for any Additional Closing, as of any Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and (iv) each of the following additional conditions. For purposes of this Section 7, the terms “Closing” and “Additional Closing” shall refer to the closing of the Firm Shares and Option Shares, respectively.
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 [5:30] P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date Date, any Additional Closing Date, and the actual time of the Closing or any Additional Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure PackageMaterials, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests of the Commission for additional information (to be included in the Registration Statement, the General Disclosure PackageMaterials, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package Materials, or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form reasonably satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx Xxxxxxx Xxxx & RiegelsXxxxxxx, Cayman Islands counsel to the Company dated as of the Closing Date, or for any Additional Closing, as of any Additional Closing Date and addressed to the UnderwritersRepresentative, (ii) legal opinions and negative assurance letter from DLA Piper UK LLPXxxxxx Xxxxxxx Xxxxxxx & Li LLC, U.S. legal securities counsel for the Company, dated as of the Closing Date, or for any Additional Closing, as of any Additional Closing Date and addressed to the UnderwritersRepresentative, and (iii) legal opinions from Xxx Xxx Guantao Law OfficesFirm Hangzhou Office, PRC legal counsel to the Company, dated as of the Closing Date, or for any Additional Closing, as of any Additional Closing Date and addressed to the Company. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of each of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, or for any Additional Closing, as of any Additional Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, or for any Additional Closing, as of any Additional Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, or for any Additional Closing, as of any Additional Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) except as disclosed in the Registration Statement or the Prospectus, the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement Statement, the Disclosure Materials, and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, or for any Additional Closing, as of any Additional Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date or any Additional Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board board of Directors directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, or for any Additional Closing, on any Additional Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP WWC, P.C. (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five three (53) business days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, or for any Additional Closing, on any Additional Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or any Additional Closing Date, or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares Securities are registered under the Exchange Act and, as of the Closing Date, or for any Additional Closing, as of any Additional Closing Date, the Shares Securities shall be listed and admitted and authorized for trading on the Nasdaq Global Capital Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares Securities under the Exchange Act or delisting or suspending the Shares Securities from trading on the Nasdaq Global Capital Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Capital Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, or for any Additional Closing, as of any Additional Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, or for any Additional Closing, as of any Additional Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 1 contract
Samples: Underwriting Agreement (Zhengye Biotechnology Holding LTD)
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunder are subject to purchase and pay for the Securities as provided herein shall be subject to: (i) the accuracy of the representations and warranties on the part of the Company herein contained, as of on the date hereof and as hereof, at the time of purchase and, if applicable, at the Closing Date or the Additional Closing Dateadditional time of purchase, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, hereunder and (iv) each of to the following additional conditions.conditions precedent:
(a) The Registration Statement Company shall furnish to you at the time of purchase and, if applicable, at the additional time of purchase, an opinion of Ellenoff Xxxxxxxx & Schole LLP, counsel for the Company, addressed to the Underwriters, and dated the time of purchase or the additional time of purchase, as the case may be, with executed copies for each of the other Underwriters, and in form and substance satisfactory to UBS, in the form set forth in Exhibit B hereto.
(b) You shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M.from M&K letters dated, Eastern Timerespectively, on the date of this Agreement, or at such later the date of the Prospectus, the time of purchase and, if applicable, the additional time of purchase, and date as addressed to the Underwriters (with executed copies for each of the Underwriters) in the forms satisfactory to UBS, which letters shall cover, without limitation, the various financial disclosures contained in the Registration Statement, the Preliminary Prospectuses and the Prospectus.
(c) You shall have been consented to in writing by received at the time of purchase and, if applicable, at the additional time of purchase, the favorable opinion of Xxxxxxxx Chance US LLP, counsel for the Underwriters. If , dated the Company shall have elected time of purchase or the additional time of purchase, as the case may be, in form and substance reasonably satisfactory to rely upon Rule 430A under UBS.
(d) No Prospectus or amendment or supplement to the Act, Registration Statement or the Prospectus shall have been filed with to which you shall have objected in writing.
(e) The Registration Statement, the Commission in a timely fashion in accordance with Exchange Act Registration Statement and any registration statement required to be filed, prior to the terms thereof and a form sale of the Securities, under the Act pursuant to Rule 462(b) shall have been filed and shall have become effective under the Act or the Exchange Act, as the case may be. If Rule 430A under the Act is used, the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within under the applicable Act at or before 5:30 P.M., New York City time, on the second full business day after the date of this Agreement (or such earlier time period; as may be required under the Act).
(f) Prior to and at the time of purchase, and, at or prior to if applicable, the Closing Date and the actual additional time of the Closingpurchase, (i) no stop order suspending with respect to the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no issued under the Act or proceedings for the issuance of such an order shall have been initiated under Section 8(d) or threatened; all requests 8(e) of the Commission for additional information Act; (to be included in ii) the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Underwriters Statement and all amendments thereto shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains contain an untrue statement of a material fact which, in the Underwriters’ reasonable opinion, is material, or omits omit to state a material fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Preliminary Prospectuses or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (iv) the Disclosure Package, and all amendments or supplements thereto, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(cg) The Underwriters shall have receivedCompany will, in form satisfactory at the time of purchase and, if applicable, at the additional time of purchase, deliver to the Underwriters you a certificate of its Chief Executive Officer and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Companyits [Principal Financial Officer], dated as the time of purchase or the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as additional time of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Datepurchase, as the case may be, in the form and substance satisfactory to the Representativeattached as Exhibit C hereto.
(dh) The Underwriters You shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Datesigned Lock-Up Agreements referred to in Section 4(l) hereof, the Underwriters and each such Lock-Up Agreement shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are be in full force and effect at the time of purchase and have not been modified; (iii) the good standing additional time of purchase, as the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificatecase may be.
(fi) On At the date time of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Datepurchase, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the RepresentativeRepresentatives Insider Letters, substantially in the form attached hereto filed as Xxxxx XXX.
(h) Subsequent exhibits to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive as the same may be amended or supplemented from time to time) from each of any amendment thereof) Wattles Capital, LLC and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares each officer or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects director of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under On the Exchange Act and, as of the Closing Datedate hereof, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed delivered to terminate, or likely to have the effect Representatives executed copies of terminatingthe Trust Agreement, the registration of Warrant Agreement, the Private Placement Agreement, the Services Agreement, the Registration Rights Agreement, the Initial Shares under Purchase Agreement, and the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global MarketEscrow Agreement [other agreements, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligiblee.g. ROFR].
(k) On the date hereof, the time of purchase and, if applicable, at the additional time of purchase, the Company shall have requested and caused each of Wattles Capital, LLC, and the Company’s directors and officers to have executed and furnished to the Representatives a certificate, dated, as applicable, as of the date hereof, the time of purchase or, if applicable, at the additional time of purchase, and addressed to the Representatives, to the effect that, except as described in the Registration Statement, the Disclosure Package and the Prospectus, there are no claims, payments, arrangements, contracts, agreements or understandings relating to the payment of a brokerage commission or finder’s, consulting, origination or similar fee by Wattles Capital, LLC or the Company’s directors or officers with respect to the sale of the Securities hereunder or any other arrangements, agreements or understandings by Wattles Capital, LLC or such directors or officers that may affect the Underwriters’ compensation, as determined by the FINRA.
(l) prior to the time of purchase, the entire proceeds of $[5,750,000] from the sale of the Insider Warrants shall have been deposited in the Trust Account.
(m) At the time of purchase, all of the Initial Shares and the Insider Warrants shall have been placed in escrow with the Escrow Agent in accordance with the Escrow Agreement.
(n) The Company shall have furnished to you such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement, any Preliminary Prospectus or the Prospectus as of the time of purchase and, if applicable, the additional time of purchase, as you may reasonably request.
(o) The Units, the Common Stock and the Warrants shall have been approved for listing on the AMEX, subject only to notice of issuance and evidence of satisfactory distribution at or prior to the time of purchase or the additional time of purchase, as the case may be.
(p) The FINRA shall not have confirmed that it has not raised any objection with respect to the fairness and or reasonableness of the underwriting terms and arrangements.
(l) No action shall have been taken and no statuteunderwriting, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as other arrangements of the Closing Datetransactions, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Companycontemplated hereby.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters to purchase and pay for the Securities as provided herein shall be under this Agreement are subject to: to the satisfaction of each of the following conditions:
(ia) the accuracy of All the representations and warranties of the Company herein contained, contained in this Agreement shall be true and correct on the Closing Date with the same force and effect as of the date hereof if made on and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and (iv) each of the following additional conditions.
(ab) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof manner and a form of within the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to time period required by Rule 424(b) within under the applicable time period; andSecurities Act, and at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings for the issuance of such an order that purpose shall have been initiated commenced or threatened; all requests of the Commission for additional information (to shall be included in the Registration Statementpending before or, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Underwriters shall not have reasonably determined, and advised best knowledge of the Company, that contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleadingCommission.
(c) The Underwriters shall have received, in form satisfactory Final Term Sheet and any other material required to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to be filed by the Company dated as of pursuant to Rule 433(d) under the Closing Date and addressed to the UnderwritersSecurities Act, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to filed with the Underwriters with consent from Commission within the applicable time periods prescribed for such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representativefilings under Rule 433.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto)Date, there shall not have been any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the Ordinary Shares rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined under Section 3(a)(62) of the Exchange Act.
(i) Since the date of the latest balance sheet included in the Registration Statement and the Prospectus, there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, affairs or business prospects, whether or not arising in the ordinary course of business, of the Company and its subsidiaries taken as a whole, except as set forth or contemplated in the Registration Statement and the Prospectus, (ii) since the date of the latest balance sheet included in the Registration Statement and the Prospectus there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the capital stock or in the long-term debt of the Company from that set forth or any change or development involving a change, whether or not arising from transactions contemplated in the ordinary course of businessRegistration Statement and Prospectus, in (iii) the businessCompany and its subsidiaries shall have no liability or obligation, condition (financial direct or otherwise)contingent, results of operations, shareholders’ equity, properties or prospects of which is material to the CompanyCompany and its subsidiaries, taken as a whole, including but not limited other than those reflected in the Registration Statement and the Prospectus, and (iv) on the Closing Date the Underwriters shall have received a certificate dated the Closing Date, signed by the Treasurer of the Company, confirming the matters set forth in paragraphs (a), (b), (c), (d) and (e) (i) – (iii) of this Section 9.
(f) The Underwriters shall have received on the Closing Date an opinion (reasonably satisfactory to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of Representatives and counsel for the Underwriters, as applicable) dated the Closing Date, of the Chief Counsel, Corporate Advisory, Securities and Transactions, or the General Counsel of the Company or such other person as the Representatives and the Company may agree. The opinion of such counsel shall be rendered to the Underwriters at the request of the Company and shall so material state therein.
(g) The Underwriters shall have received on the Closing Date an opinion (reasonably satisfactory to the Representatives and adverse counsel for the Underwriters, as applicable), dated the Closing Date, of Xxxxxx, Xxxx & Xxxxxxxx LLP, special counsel to make it impracticable or inadvisable to proceed with the sale Company.
(h) The Underwriters shall have received on the Closing Date an opinion, dated the Closing Date, of Securities or Offering Xxxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, covering such matters as contemplated herebythe Representatives may request.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by letters on and as of the applicable Lock-Up Partydate hereof and on and as of the Closing Date, in each case substantially form and substance satisfactory to the Representatives, from Ernst & Young LLP, independent public accountants, with respect to the financial statements and certain financial information of the Company contained in the form attached as Annex IVRegistration Statement, any preliminary prospectus and the Prospectus.
(j) The Shares are registered under Company shall not have failed at or prior to the Exchange Act and, as Closing Date to perform or comply with any of the agreements herein contained and required to be performed or complied with by the Company at or prior to the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Financial Corp)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters Underwriter to purchase and pay for the Securities as provided herein shall be Shares is subject to: (i) to the continuing accuracy of and compliance with the representations and warranties on the part of the Company contained herein contained, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) to the performance by the Company of its obligations and covenants hereunder, to the absence from any certificates, opinions, written statements or letters furnished to the Underwriters Underwriter or to Underwriters’ Counsel pursuant to this Section 7 its counsel of any misstatement or omission, (iii) omission that is material to the performance purchase of the Shares by the Company of its obligations hereunder, Underwriter and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 9:30 P.M., Eastern TimeNew York time, on the day after the date of this Agreement, or at such later date or time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time periodUnderwriter; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings for the issuance of such an order that purpose shall have been initiated instituted or threatenedshall be pending, threatened or contemplated by the Commission; all requests and any request for additional information on the part of the Commission for additional information (to be included in the Registration Statement, Statement or the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with with, and no amendments or supplements to the Underwriters’ satisfactionRegistration Statement or Prospectus shall have been filed to which the Underwriter and its counsel have not given their consent.
(b) The Underwriters shall not have reasonably determinedAll corporate action taken and all legal opinions and proceedings relating to the Shares, the Underwriter's Warrants and advised the CompanyWarrant Shares, that the Registration StatementStatement and the Prospectus and all other matters incident thereto and to the transactions to which this Agreement relate shall be reasonably satisfactory to Underwriter's counsel and they shall have been furnished with such certificates, documents and information as they may request in this connection.
(c) The Company shall have performed each of the General Disclosure Package agreements herein contained and required to be performed by it at or prior to the Prospectus, Closing Date and the Option Closing Date.
(d) On the Closing Date and Option Closing Date (i) the Registration Statement and the Prospectus and any amendments or supplements thereto shall contain all statements which are required to be stated therein in accordance with the Act and the Rules under the Act and shall in all material respects conform to the requirements of the Act and the Rules under the Act and neither the Registration Statement nor the Prospectus nor any amendment thereof or supplement thereto, or thereto shall contain any Issuer Free Writing Prospectus, contains an untrue statement of a material fact which, in the Underwriters’ reasonable opinion, is material, or omits omit to state a any material fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to since the respective dates as of which information is given in the Registration Statement and the Prospectus, Prospectus there has not shall have been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions no material adverse changes in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate property or financial condition of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) its Subsidiaries from that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained set forth in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions other than changes occurring in the ordinary course of business, and there shall have been no material transaction, contract or agreement entered into by the Company or any Subsidiary which is not referred to in the businessRegistration Statement and the Prospectus, condition (financial iii) no action, suit or otherwise)proceeding at law or in equity shall be pending or, results of operations, shareholders’ equity, properties or prospects to the knowledge of the Company, threatened against the Company or any Subsidiary which would be required to be set forth in the Registration Statement and the Prospectus other than as set forth therein, and no proceedings shall be pending or, to the knowledge of the Company, threatened against the Company or any Subsidiary before or by any Federal, state or other (including foreign) commission, board or administrative agency wherein an unfavorable decision, ruling or finding would have a material adverse effect upon the business, property, financial condition or income of the Company and the Subsidiaries taken as a whole except as disclosed in the Prospectus and (iv) neither the Company nor any Subsidiary shall have declared or made any payments of dividends or made any acquisitions of capital stock or made any other distribution on outstanding shares of capital stock other than as set forth in the Registration Statement (except for distributions made to the Company by a Subsidiary).
(e) The Underwriter shall receive on, and as of the Closing Date and the Option Closing Date, the favorable opinion of Brock, Fensterstock, Xxxxxxxxxxx, XxXxxxxxx & Xxxx, LLC, counsel for the Company, to the Underwriter in form and substance satisfactory to counsel to the Underwriter, to the effect that:
(i) the Company is a corporation in good standing, duly organized and validly existing under the laws of the state of its incorporation, and is authorized by its Certificate of incorporation and by-laws to own its properties and to conduct its business, as set forth in the Prospectus;
(ii) to the best of such counsel's knowledge, the sole subsidiaries of the Company are Nouveau Foods International, Inc., Nouveau Vend International, Inc., Nouveau Equities, Inc. and Nouveau International (PA), Inc., all of the outstanding capital stock of which are wholly owned by the Company, and each such Subsidiary is a corporation in good standing, duly organized and validly existing under the laws of the state of its incorporation, and is authorized by its Certificate of Incorporation and by-laws to own its properties and to conduct its business as set forth in the Prospectus;
(iii) to the best of such counsel's knowledge, the Company and each of its Subsidiaries is duly qualified to transact the business in which it is engaged and is in good standing in each jurisdiction in which its ownership or lease of property requires such qualification or registration, except in those jurisdictions where the failure to be so qualified would not, taken in the aggregate, have a material adverse effect on the business, financial condition or results of the Company and the Subsidiaries taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.;
Appears in 1 contract
Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters to purchase Underwritten Securities pursuant to the applicable Terms Agreement are subject to the accuracy, at and pay for (except as otherwise stated herein) as of the Securities as provided herein shall be subject to: (i) date hereof, the accuracy Applicable Time, the applicable Representation Date, the Closing Time and at each Date of Delivery, of the representations and warranties made herein by the Company, to the accuracy of the Company herein contained, as statements of the date hereof Company’s officers or directors in any certificate furnished pursuant to the provisions hereof, to compliance at and as of the Closing Time and at each Date of Delivery by the Company, with its covenants and agreements herein contained and other provisions hereof to be satisfied at or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished prior to the Underwriters Closing Time, or to Underwriters’ Counsel pursuant to this Section 7 Date of any misstatement or omissionDelivery, (iii) as the performance by the Company of its obligations hereundercase may be, and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have has become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Time and any Date and the actual time of the ClosingDelivery, (i) no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings for that purpose or pursuant to Section 8A under the issuance of such an order 1933 Act shall have been initiated or threatened; all requests or, to the knowledge of the Company, threatened by the Commission and any request on the part of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement reasonable satisfaction of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions each preliminary prospectus and negative assurance the Prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B), (iii) any material required to be filed by the Company pursuant to Rule 433(d) of the 1933 Act Regulations shall have been filed with the Commission within the applicable time periods prescribed for such filings under such Rule 433, (iv) the Company shall have paid the required Commission filing fees relating to the Underwritten Securities within the time period required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and (v) there shall not have come to your attention any facts that would cause you to believe that (a) the Prospectus, together with the applicable Prospectus Supplement, at the time it was required to be delivered (or but for the exception afforded by Rule 172 of the 1933 Act Regulations would be required to be delivered) to purchasers of the Underwritten Securities, or (b) the General Disclosure Package, at 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 existing at such time, not misleading.
(b) At the time of execution of the applicable Terms Agreement, you shall have received from PricewaterhouseCoopers LLP a letter, dated the date of such execution, in form and substance satisfactory to you, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters.
(c) At the Closing Time, you shall have received from PricewaterhouseCoopers LLP a letter, dated the Closing Time, to the effect that such accountants reaffirm, as of the Closing Time, and as though made on the Closing Time, the statements made in the letter furnished by such accountants pursuant to paragraph (b) of this Section 8, except that the specified date will be a date not more than three business days prior to the Closing Time.
(d) At the Closing Time, you shall have received from DLA Piper UK LLPXxxxx Day, U.S. legal counsel for the Company, an opinion, dated as of the Closing Date Time, substantially in the form set forth in Exhibit B hereto and addressed to such further effect as counsel to the Underwriters may reasonably request.
(e) At the Closing Time, you shall have received from Sidley Austin LLP, counsel for the Underwriters, their opinion or opinions dated the Closing Time in form and substance satisfactory to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel they may reasonably request to enable for the purpose of enabling them to pass on upon such matters. XxxXxxxxx Law OfficesIn giving their opinion, PRC counsel Sidley Austin LLP may rely as to matters involving the laws of the State of Ohio upon the opinion of Xxxxx Day. Xxxxx Day and Sidley Austin LLP may rely (i) as to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer qualification of the Company (or its subsidiaries to do business in any state or jurisdiction, upon certificates of appropriate government officials, telephonic confirmation by representatives of such states or confirmation from information contained on the “Officers’ Certificate”), substantially in the form attached hereto as Annex I websites of such states and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as to matters of fact, upon certificates and written statements of officers and employees of and accountants for the Company or its subsidiaries.
(f) Subsequent to the execution and delivery of this Agreement and the Terms Agreement and prior to the Closing Time or any Date of Delivery:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that either (x) does not indicate the direction of the date hereof and as possible change or (y) indicates a negative change, in the rating accorded any of the Closing DateCompany’s securities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the 1934 Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the representations and warranties condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement Statement, the General Disclosure Package and the Prospectus (exclusive of any amendments or any amendment thereof has been issued supplements thereto subsequent to the date of this Agreement) that, in your judgment, is material and no proceedings therefor have been initiated or threatened by adverse and that makes it, in your judgment, impracticable to market the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included Underwritten Securities on the terms and in the manner contemplated in the Registration Statement Statement, the General Disclosure Package and the Prospectus pursuant to Prospectus.
(g) At the Regulations which are Closing Time (i) there shall not so includedhave been, and (vii) subsequent to since the date of the applicable Terms Agreement or since the respective dates as of which information is given in the Registration Statement Statement, the General Disclosure Package and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse ChangeEffect, whether or not arising from transactions other than as set forth in the ordinary course of business.
Registration Statement, the General Disclosure Package and the Prospectus, (eii) At each 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, (iii) the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Closing Date1933 Act Regulations objecting to the use of the automatic shelf registration statement form, (iv) no stop order suspending the Underwriters effectiveness of the Registration Statement shall have been issued under the 1933 Act and no proceeding therefor shall have been instituted or threatened by the Commission and (v) you shall have received at the Closing Time a certificate of (A) the President, Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer or any Executive Vice President of the Company signed by and (B) the Secretary President, Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer or any Executive Vice President of the Company (in each case, only if such officer had not executed the “Secretary’s Certificate”certificate pursuant to clause (v)(A) above), substantially in the form attached hereto dated as Annex II and dated of the Closing DateTime, certifying: (i) that each of evidencing compliance with the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date provisions of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such dateSection 8(g), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to You shall have received a certificate, dated the Closing Date orTime, if earlierof (i) the President, the dates as of which information is given in the Registration Statement (exclusive of Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer or any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt Executive Vice President of the Company and (ii) the President, Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer or any change or development involving a changeExecutive Vice President of the Company (in each case, whether or only if such officer had not arising from transactions in executed the ordinary course of business, in the business, condition certificate pursuant to clause (financial or otherwisei) above), results of operations, shareholders’ equity, properties or prospects to the effect that the representations and warranties of the Company, taken Company contained in Section 2(a) hereof are true and correct with the same force and effect as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment though expressly made at and as of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated herebyClosing Time.
(i) The Underwriters At the time of execution of the applicable Terms Agreement, except as otherwise provided in the applicable Terms Agreement, you shall have received a lock-up letter agreement from each Lock-Up Partydirector and officer (as such term is defined in Rule 16a-1 under the 1934 Act Regulations) of the Company serving at the Closing Time, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV1 hereto.
(j) The Shares are registered under Company shall have furnished to you such additional certificates as specified in the Exchange Act andapplicable Terms Agreement as you may have reasonably requested as to the accuracy, at and as of the Closing DateTime, of the Shares shall representations and warranties made herein by them, as to compliance, at and as of the Closing Time, by them with their covenants and agreements herein contained and other provisions hereof to be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided satisfied at or prior to the Underwriters. The Company shall have taken no action designed Closing Time, and as to terminate, or likely other conditions to have the effect of terminating, the registration obligations of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligibleUnderwriters hereunder.
(k) FINRA In the event the Underwriters exercise their option provided in a Terms Agreement as set forth in Section 3 hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company hereunder shall be true and correct as of each Date of Delivery, and you shall have confirmed received:
(i) A letter from PricewaterhouseCoopers LLP in form and substance satisfactory to you and dated such Date of Delivery, substantially the same in scope and substance as the letter furnished to you pursuant to Section 8(c) hereof, except that it has the specified date in the letter furnished pursuant to this Section 8(k)(i) shall be a date not raised any objection with respect more than three business days prior to the fairness and reasonableness such Date of the underwriting terms and arrangementsDelivery.
(lii) No action shall have been taken and no statuteThe opinion of Xxxxx Day, 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of counsel for the Company, in form and substance satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities and otherwise to the same effect as the opinion required by Section 8(d) hereof.
(miii) The opinion of Sidley Austin LLP, counsel for the Underwriters, dated such Date of Delivery, relating to the Options Securities and otherwise to the same effect as the opinion required by Section 8(e) hereof.
(iv) A certificate, dated such Date of Delivery, of (A) the President, Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer or any Executive Vice President of the Company shall have furnished and (B) the Underwriters President, Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer or any Executive Vice President of the Company (in each case, only if such officer had not executed the certificate pursuant to clause (A) above) confirming that the certificate or certificates delivered at the Closing Time pursuant to Sections 8(g)(v) and Underwriters’ Counsel with 8(h) hereof remains or remain true as of such other Date of Delivery.
(v) Such additional certificates, opinions or documents dated such Date of Delivery, as they you may have reasonably requested.
(nrequested pursuant to Section 8(j) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect hereof. If any of the CSRC Filings on its website, conditions hereinabove provided for in this Section 8 shall not have been satisfied when and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not as required to apply for cybersecurity review with be satisfied, the CAC with respect applicable Terms Agreement may be terminated by you by notifying the Company of such termination in writing or by telegram at or prior to the Company’s proposed overseas listing pursuant Closing Time, but you shall be entitled to the Revised Cybersecurity Review Measureswaive any of such conditions.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters to purchase and pay for the Securities Firm Shares as provided herein shall be on the Closing Date and, with respect to the Option Shares, the Option Closing Date, are subject to: (i) to the accuracy of the Company’s and the Selling Shareholders’ representations and warranties of the Company herein containedset forth in Section 1 hereof, as of the date hereof and at the Closing Date (as if made at the Closing Date) and, with respect to the Option Shares, as of the Option Closing Date or (as if made at the Additional Option Closing Date), (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the timely performance by the Company of its covenants and other obligations hereunder, and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have Statement, including any Rule 462(b) registration statement, has become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; all requests of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has shall have been issued and no proceedings therefor for the issuance of such an order shall have been initiated or threatened by the Commissionor, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt knowledge of the Company or any change or development involving Representative, threatened; a change, whether or not arising from transactions in Prospectus containing the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action Rule 430A Information shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that filed with the Commission or in the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
manner and within the time period required by Rule 424(b) (k) without reliance on Rule 424(b)(8)); and FINRA shall have confirmed that it has not raised any no objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(lb) No action Between the date hereof and the Closing Date (or the Option Closing Date, as the case may be), no Material Adverse Change shall have been taken and no statuteoccurred or become known to the Company that, rulein the Representative’s judgment, regulation makes it impracticable or order inadvisable to proceed with the public offering of the Shares as contemplated by the Prospectus.
(c) The Representative shall have received, on the Closing Date and the Option Closing Date, as the case may be an opinion of Xxxxxx & Whitney LLP, counsel for the Company, substantially in the form of Exhibit A attached hereto, which opinion shall be dated the Closing Date and the Option Closing Date, as the case may be, and addressed to the Underwriters.
(d) The Representative shall have received, on the Closing Date and the Option Closing Date, as the case may be, an opinion from Stoel Rives LLP, counsel for the Underwriters, dated the Closing Date and the Option Closing Date, as the case may be, and addressed to the Underwriters, as to such matters as the Underwriters may reasonably request.
(e) At the time of the execution of this Agreement, the Representative shall have received a letter from Xxxxxx LLC, independent registered public accountants, a letter dated the date hereof, in form and substance satisfactory to the Representative, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package.
(f) At the Closing Date and the Option Closing Date, as the case may be, the Representative shall have received a letter from Xxxxxx LLC, independent registered public accountants, to the effect that they reaffirm the statements in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date with respect to the financial statements and certain financial information contained in the Prospectus.
(g) The Representative shall have received, on the Closing Date and the Option Closing Date, as the case may be, a certificate of the Company, dated the Closing Date or the Option Closing Date, as the case may be, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, to the effect that:
(i) the representations and warranties of the Company set forth in Section 1(A) of this Agreement are true and correct, as if made on and as of the Closing Date or the Option Closing Date, as the case may be, and the Company has complied with all of the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be;
(ii) for the period from and after the date hereof and prior to the Closing Date or the applicable Option Closing Date, as the case may be, there has not occurred any Material Adverse Change;
(iii) such officer has examined the Registration Statement and nothing has come to his attention that would lead him to believe that: (1) as of the effective date of the Registration Statement, the Registration Statement and any amendments thereto contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein not misleading, and (2) since the effective date of the Registration Statement, there has occurred any event required to be set forth in a supplement to or an amendment of the Prospectus that has not been enactedso set forth in such supplement or amendment;
(iv) such officer has examined the Prospectus, adopted including any amendments and supplements thereto, and nothing has come to his attention that would lead him to believe that the Prospectus as of its date and the Closing Date or issued by the applicable Option Closing Date, as the case may be, contained or contains any federaluntrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, state or foreign governmental or regulatory authority in the light of the circumstances under which they were made, not misleading; and
(v) such officer has examined the Disclosure Package and nothing has come to his attention that wouldwould lead him to believe that the Disclosure Package, as of the Initial Sale Time, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(h) The Common Shares shall have been approved for listing on The NASDAQ Capital Market, subject only to official notice of issuance and upon consummation of the offering contemplated by this Agreement the Company will be in compliance with the designation and maintenance criteria applicable to NASDAQ Capital Market issuers.
(i) The Representative and counsel for the Underwriters shall have received, on or before each of the Closing Date and the Option Closing Date, prevent as the issuance or case may be, such information, documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the sale of the Securities; and no injunction Shares as contemplated herein, or in order to evidence the accuracy of any federalof the representations and warranties or the satisfaction of any of the conditions or agreements, state herein contained.
(j) On or foreign court prior to the date hereof, the persons identified on Annex V shall have been issued furnished to the Representative lock-up agreements in a form acceptable to the Representative, and each such agreement shall be in full force and effect on each of the Closing Date and the Option Closing Date.
(k) The Representative shall have received, on the Closing Date and the Option Closing Date, as the case may be, a certificate or certificates, dated the Closing Date or the Option Closing Date, as the case may be, signed by each of the Selling Shareholders to the effect that wouldthe representations and warranties of each of the Selling Shareholders set forth in Section 1(B) of this Agreement are true and correct, as if made on and as of the Closing Date or the Option Closing Date, prevent as the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they case may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its websitebe, and such notice Selling Shareholder has complied with all of acceptance and/or filing results published not having otherwise been rejectedthe agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or the Option Closing Date, withdrawn, revoked or invalidated.
(o) The Company as the case may be. If any condition specified in this Section 6 is not satisfied when and as required to apply for cybersecurity review with be satisfied, this Agreement may be terminated by the CAC Representative by notice to the Company at any time on or prior to the Closing Date and, with respect to the Company’s proposed overseas listing Option Shares, at any time prior to the Option Closing Date, which termination shall be without liability on the part of any party to any other party, except that Section 5, Section 7 and Section 8 shall at all times be effective and shall survive such termination. All opinions, certificates, letters and other documents delivered pursuant to this Section 6 will be in compliance with the Revised Cybersecurity Review Measuresprovisions hereof only if they are satisfactory in form and substance to the reasonable judgment of the Representative.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters Underwriter to purchase and pay for the Securities as provided herein Designated Shares under any Pricing Agreement shall be subject to: to the accuracy, as of the date hereof, as of the date of the Pricing Agreement and as of the Closing Date (iand, if applicable, the Option Closing Date) the accuracy relating to a particular issuance of Designated Shares, of the representations and warranties of the Company herein containedcontained herein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its covenants and obligations hereunder, and (iv) each of to the following additional conditions.:
(a) The If the Registration Statement has not previously become effective, the Registration Statement and all post-effective amendments thereto shall have become effective not later than 1:00 p.m., St. Louis time, on the date of the Pricing Agreement, or at such later date and time as may be approved by the Underwriter; if the Company has elected to rely on Rule 462(b) under the 1933 Act, the Abbreviated Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Timethe earlier of (x) 9:00 p.m. St. Louis time, on the date of this the Pricing Agreement, or (y) at such later date and time as may be approved by the Underwriter. All filings required by Rule 424 and date as Rule 430A of the 1933 Act Rules and Regulations shall have been consented to in writing by the Underwritersmade. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no No stop order suspending the effectiveness of the Registration Statement or any part thereofStatement, or any amendment thereofas amended from time to time, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings proceeding for the issuance of such an order that purpose shall have been initiated or threatened; all requests or, to the knowledge of the Commission Company or any Underwriter, threatened or contemplated by the SEC, and any request of the SEC for additional information (to be included in the Registration Statement, Statement or the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfactionreasonable satisfaction of the Underwriter.
(b) The Underwriters Underwriter shall not have reasonably determined, and advised the CompanyCompany on or prior to the Closing Date (and, if applicable, the Option Closing Date) relating to a particular issuance of Designated Shares, that the Registration Statement, the General Disclosure Package Statement or the Prospectus, Prospectus or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, thereto contains an untrue statement of fact which, in the Underwriters’ reasonable opinionopinion of counsel to the Underwriter, is material, or omits to state a fact which, in the Underwriters’ reasonable opinionopinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading.
(c) The Underwriters On the Closing Date (and, if applicable, the Option Closing Date) relating to a particular issuance of Designated Shares, you shall have receivedreceived one or more opinions of counsel for the Company, addressed to you and dated the Closing Date (and, if applicable, the Option Closing Date) for such Designated Shares, in form substantially the forms of Annex B and Annex C. In rendering the opinion, such counsel may rely, (1) as to matters involving laws of any jurisdiction other than New York or the United States, upon opinions addressed to the Underwriter of other counsel satisfactory to it and Xxxxx Xxxx LLP, and (2) as to all matters of fact, upon certificates and written statements of the Underwriters executive officers of, and Underwriters’ accountants for, the Company, provided, in either case, that such counsel shall state in their opinion that they and the Underwriter are justified in relying thereon. Such counsel shall also confirm that during the preparation of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegelsthe Registration Statement and Prospectus, Cayman Islands such counsel participated in conferences with officers and representatives of the Company and its independent accountants, at which conferences the contents of the Registration Statement and the Prospectus including all documents filed under the 1934 Act and deemed incorporated by reference therein were discussed, reviewed and revised. On the basis of the information which was developed in the course thereof, considered in light of such counsel's understanding of applicable law and the experience gained by such counsel through their practice thereunder, without such counsel assuming responsibility for the accuracy and completeness of such statements except to the Company dated extent expressly provided above, such counsel shall confirm that nothing came to their attention that would lead them to believe that either the Registration Statement (including any document filed under the 1934 Act and deemed incorporated by reference therein), as of the Effective Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Prospectus or any amendment or supplement thereto (including any document filed under the 1934 Act and deemed incorporated by reference therein) as of its respective issue date and as of the Closing Date and addressed (or, if applicable, the Option Closing Date) relating to a particular issuance of Designated Shares, contained or contains any 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 Underwritersstatements therein, in the light of the circumstances under which they were made, not misleading (iiother than the financial statements or other financial data as to which such counsel need express no opinion).
(d) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of You shall have received on the Closing Date and addressed to (and, if applicable, the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Option Closing Date. Each ) relating to a particular issuance of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable lawsDesignated Shares, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law Xxxxx Xxxx LLP, counsel to the UnderwritersUnderwriter, shall have furnished to the Representative its (i) written opinionsuch opinion or opinions, addressed to the Underwriters and dated the Closing Date or any Additional (and, if applicable, the Option Closing Date, ) relating to a particular issuance of Designated Shares with respect to such matters as the case you may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, reasonably require; and the Company shall have furnished to such counsel such documents and information as such counsel may they reasonably request to enable for the purposes of enabling them to review or pass on such matters. XxxXxxxxx Law Officesthe matters referred to in this Section 6 and in order to evidence the accuracy, PRC counsel to completeness and satisfaction of the Underwritersrepresentations, shall have furnished to warranties and conditions herein contained.
(e) On the Representative its written opinion, addressed to business day immediately preceding the Underwriters date of the applicable Pricing Agreement and dated on the Closing Date or any Additional (and, if applicable, the Option Closing Date) relating to a particular issuance of Designated Shares, as you shall have received from Ernst & Young LLP, a letter or letters, dated the case may bedate of this Agreement and the Closing Date (and, if applicable, the Option Closing Date) relating to a particular issuance of Designated Shares, respectively, in form and substance satisfactory to you, confirming that they are independent public accountants with respect to the RepresentativeCompany within the meaning of the 1933 Act and the published Rules and Regulations, and containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information relating to the Company contained in the Registration Statement and Prospectus.
(df) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially Except as contemplated in the form attached hereto as Annex I and dated as of the Closing DateProspectus, to the effect that: (i) neither the conditions set forth in subsection (a) Company nor any of this Section 7 its subsidiaries shall have been satisfied, (ii) as sustained since the date of the date hereof and as of latest audited financial statements included or incorporated by reference in the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained Prospectus any material loss or interference with its businessesbusiness from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, decree; and (viiii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been neither the Company nor any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters its subsidiaries shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”)incurred any liability or obligation, substantially in the form attached hereto as Annex II and dated the Closing Datedirect or contingent, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulationsor entered into any transactions, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares capital stock or short-term or long-term debt of the Company and its subsidiaries or any change change, or any development involving or which might reasonably be expected to involve a change, whether or not arising from transactions prospective change in the ordinary course of business, in the business, condition (financial or otherwiseother), net worth, business, affairs, management, prospects, results of operations, shareholders’ equity, properties operations or prospects cash flow of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war Company or terrorism or other calamityits subsidiaries, the effect of which, in any such case described abovein clause (i) or (ii), is, is in the reasonable your judgment of the Underwriters, so material and or adverse as to make it impracticable or inadvisable to proceed with the sale public offering or the delivery of Securities the Designated Shares being delivered on such Closing Date (and, if applicable, the Option Closing Date) relating to a particular issuance of Designated Shares on the terms and in the manner contemplated in the Prospectus.
(g) There shall not have occurred any of the following: (i) a suspension or Offering material limitation in trading in securities generally on the New York Stock Exchange or the establishing on such exchange by the SEC or by such exchanges or markets of minimum or maximum prices which are not in force and effect on the date hereof; (ii) a suspension or material limitation in trading in the Company's securities on the NYSE or the establishing on such exchange by the SEC or by such exchange of minimum or maximum prices which are not in force and effect on the date hereof; (iii) a general moratorium on commercial banking activities declared by either federal or any state authorities; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, which in your judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Shares in the manner contemplated in the Prospectus; or (v) any calamity or crisis, change in national, international or world affairs, act of God, change in the international or domestic markets, or change in the existing financial, political or economic conditions in the United States or elsewhere, which in your judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Shares in the manner contemplated in the Prospectus.
(h) You shall have received certificates, dated the Closing Date (and, if applicable, the Option Closing Date) relating to a particular issuance of Designated Shares and signed by the President and the Chief Financial Officer of the Company, in their capacities as contemplated hereby.such, stating that:
(i) The Underwriters shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, condition set forth in each case substantially in the form attached as Annex IV.Section 6(a) has been fully satisfied;
(jii) The Shares are registered under they have carefully examined the Exchange Act andRegistration Statement and the Prospectus as amended or supplemented and all documents incorporated by reference therein and nothing has come to their attention that would lead them to believe that either the Registration Statement or the Prospectus, or any amendment or supplement thereto or any documents incorporated by reference therein as of their respective effective, issue or filing dates, contained, and the Prospectus as amended or supplemented and all documents incorporated by reference therein and when read together with the documents incorporated by reference therein, at such Closing Date, contains any untrue statement of a material fact, or omits to state a material fact required to be stated therein or necessary in order to make the Shares shall statements therein, in light of the circumstances under which they were made, not misleading;
(iii) since the date of the applicable Pricing Agreement, there has occurred no event required to be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided set forth in an amendment or supplement to the Underwriters. The Company shall have taken Registration Statement or the Prospectus which has not been so set forth and there has been no action designed document required to terminate, or likely to have the effect of terminating, the registration of the Shares be filed under the Exchange 1934 Act or delisting or suspending and the Shares from trading on 1934 Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the Nasdaq Global Market, nor will Prospectus that has not been so filed;
(iv) all representations and warranties made herein by the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating are true and correct at such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent with the issuance or sale of the Securities; same effect as if made on and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the such Closing Date, prevent and all agreements herein to be performed or complied with by the issuance Company on or sale prior to such Closing Date have been duly performed and complied with by the Company;
(v) neither the Company nor any of its subsidiaries has sustained since the date of the Securities latest audited financial statements included or materially incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree;
(vi) except as disclosed in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and adversely affect the Prospectus, neither the Company nor any of its subsidiaries has incurred any liabilities or potentially materially obligations, direct or contingent, other than in the ordinary course of business, or entered into any transactions not in the ordinary course of business, which in either case are material to the Company or such subsidiary; and adversely affect there has not been any change in the business capital stock or operations material increase in the short-term debt or long-term debt of the Company.Company or any of its subsidiaries or any material adverse change or any development involving or which may reasonably be expected to result in a Material Adverse Effect; and there has been no dividend or distribution of any kind, paid or made by the Company on any class of its capital stock; and
(mvii) The Company shall have furnished the Underwriters and Underwriters’ Counsel with covering such other certificates, opinions or documents matters as they you may have reasonably requestedrequest.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 1 contract
Samples: Underwriting Agreement (Healthcare Realty Trust Inc)
Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Securities Firm Shares and the Additional Shares, as provided herein herein, shall be subject to: (i) to the accuracy of the representations and warranties of the Company herein contained, as of the date hereof and as of the Closing Date or (for purposes of this Section 6 “Closing Date” shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, (ii) if different, for the Additional Shares), to the absence from any certificates, opinions, written statements or letters furnished to the Underwriters you or to Underwriters’ Counsel pursuant to this Section 7 6 of any misstatement or omission, (iii) to the performance by the Company of its obligations hereunder, and (iv) to each of the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing or stock exchange approvals shall have been received not later than 5:30 P.M., Eastern TimeNew York time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If Lead Manager; if the Company shall have elected to rely upon Rule 430A or Rule 434 under the Securities Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof Section 4(a) hereof and a form of the Prospectus containing information relating to the description of the Securities Shares and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any post-effective amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus thereof shall have been issued; issued and no proceedings for the issuance of such an order therefor shall have been initiated or threatened; all requests of threatened by the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfactionCommission.
(b) The Underwriters At the Closing Date you shall not have reasonably determinedreceived the favorable written opinion of Xxxxxxxxx Xxxxxxx, and advised LLP, counsel for the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, Underwriters in the form attached hereto as Annex I.
(iic) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for All proceedings taken in connection with the Company, dated as sale of the Closing Date Firm Shares and addressed the Additional Shares as herein contemplated shall be satisfactory in form and substance to the Lead Manager and to Underwriters’ Counsel, and (iii) legal opinions the Underwriters shall have received from Xxx Xxx Law Offices, PRC legal counsel to the CompanyUnderwriters’ Counsel a favorable written opinion, dated as of the Closing Date. Each , with respect to the issuance and sale of the opinion shall provide assurance to parties that Shares, the legal aspects of Registration Statement and the transaction have been properly examined Prospectus and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, other related matters as the case Lead Manager may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may berequire, and the Company shall have furnished to such counsel Underwriters’ Counsel such documents and information as such counsel they may reasonably request to enable for the purpose of enabling them to pass on upon such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters At the Closing Date you shall have received certificates a certificate of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”)Company, substantially in the form attached hereto as Annex I and dated as of the Closing Date, Date to the effect that: that (i) the conditions condition set forth in subsection (a) of this Section 7 have 6 has been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 1 hereof are accurate, (iii) as of the Closing Date, Date all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has and the Subsidiaries have not sustained any material loss or interference with its businessestheir respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, proceeding and (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, Prospectus there has not been any Material Adverse Change material adverse change or any development involving a prospective Material Adverse Changematerial adverse change, whether or not arising from transactions in the ordinary course of business, in or affecting (x) the business, condition (financial or otherwise), results of operations, stockholders’ equity, properties or prospects of the Company and the Subsidiaries, taken as a whole; (y) the long-term debt or capital stock of the Company or any of its Subsidiaries; or (z) the Offering or consummation of any of the other transactions contemplated by this Agreement, the Registration Statement and the Prospectus.
(e) At each of the time this Agreement is executed and at the Closing Date, the Underwriters you shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”)comfort letters, substantially in the form attached hereto as Annex II and dated the Closing Datefrom Xxxxxx Bowler Taylor & Xxxx, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of independent public accountants for the Company’s Board , dated as of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on as of the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such daterespectively, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(gf) On At the time this Agreement is executed and at the Closing Date, you shall have received comfort letters, from Deloitte & Touche LLP, independent public accountants for the Xxxxxxx business and 19 Entertainment Limited, dated as of the date of this Agreement and on as of the Closing Date, the Company shall have furnished to the Representativerespectively, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel.
(g) At the time this Agreement is executed and at the Closing Date, you shall have received a letter, from Deloitte & Touche, LLP, dated, respectively, as of its Chief Financial Officer with respect the date of this Agreement and as of the Closing Date addressed to certain financial date contained the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, stating that nothing caused them to believe that the unaudited pro forma information of the Company included in the Registration Statement and Prospectus (does not comply as to form with the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory applicable accounting requirements of Rule 11-02 of Regulation S-X promulgated under the Securities Act or that the pro forma adjustments have not been applied properly to the Representative, substantially historical amounts in the form attached hereto as Xxxxx XXXcompilation of such statements.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares capital stock or long-term debt of the Company or any Subsidiary or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholdersstockholders’ equity, properties or prospects of the CompanyCompany and the Subsidiaries, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism accident or other calamitycalamity at any of the properties owned or leased by the Company or any of its Subsidiaries, the effect of which, in any such case described above, is, in the reasonable judgment of the UnderwritersLead Manager, so material and adverse as to make it impracticable or inadvisable to proceed with the sale Offering on the terms and in the manner contemplated in the Prospectus (exclusive of Securities or Offering as contemplated herebyany supplement).
(i) The Underwriters You shall have received a duly executed lock-up agreement from each Lock-Up Party, duly executed by person who is a director or officer of the applicable Lock-Up PartyCompany and each stockholder listed on Schedule II hereto, in each case substantially in the form attached hereto as Annex IVII.
(j) The Shares are registered under the Exchange Act and, as of At the Closing Date, the Shares shall be listed and admitted and authorized have been approved for trading quotation on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligibleNASDAQ.
(k) FINRA At the Closing Date, the NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or other documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect . If any of the CSRC Filings on its websiteconditions specified in this Section 6 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 you or to Underwriters’ Counsel pursuant to this Section 6 shall not be satisfactory in form and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect substance to the Company’s proposed overseas listing pursuant Lead Manager and to Underwriters’ Counsel, all obligations of the Underwriters hereunder may be cancelled by the Lead Manager at, or at any time prior to, the Closing Date and the obligations of the Underwriters to purchase the Additional Shares may be cancelled by the Lead Manager at, or at any time prior to, the Additional Closing Date. Notice of such cancellation shall be given to the Revised Cybersecurity Review MeasuresCompany in writing, or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
Appears in 1 contract
Samples: Underwriting Agreement (CKX, Inc.)
Conditions of Underwriters’ Obligations. The obligations of the several Underwriters to purchase and pay for the Securities as provided herein shall be Shares which they have respectively agreed to purchase hereunder are subject to: (i) to the accuracy (as of the date hereof, and as of the Closing Dates) of and compliance with the representations and warranties of the Company herein containedset forth herein, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by the Company of its obligations hereunder, and to the satisfaction (iv) at or prior to the Closing Dates), of each of the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals the Representatives shall have been received notice thereof not later than 5:30 P.M.10:00 a.m., Eastern TimeNew York City time, on the date on which the amendment to the Registration Statement originally filed with respect to the Shares or to the Registration Statement, as the case may be, containing information regarding the initial public offering price of this Agreementthe Shares has been filed with the Commission, or at such later time and date as shall have been consented agreed to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the ActRepresentatives; if required, the Prospectus or any Term Sheet that constitutes a part thereof and any amendment or supplement thereto shall have been filed with the Commission in a timely fashion in accordance with the terms thereof manner and a form of within the Prospectus containing information relating to the description of the Securities time period required by Rule 434 and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within under the applicable time periodAct; and, at on or prior to the Closing Date and the actual time of the ClosingDates, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings for the issuance of such an order that or a similar purpose shall have been initiated instituted or threatenedshall be pending or, to the Representatives' knowledge or to the knowledge of the Company, shall be contemplated by the Commission; all requests any request on the part of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of Xxxxx & XxXxxxxx, counsel to the several Underwriters’ satisfaction.;
(b) The Underwriters At the First Closing Date, the Representatives shall not have reasonably determinedreceived the opinion, addressed to the Underwriters, dated as of the First Closing Date, of Xxxxx & Xxxxxxx LLP, Washington, D.C. and advised Warsaw, Poland, counsel for the Company, that substantially in the form attached hereto as Annex A.
(c) All corporate proceedings and other legal matters relating to this Agreement, the Warrant Agreement, the Registration Statement, the General Disclosure Package Prospectus and other related matters shall be satisfactory to or approved by Xxxxx & XxXxxxxx, counsel to the Prospectusseveral Underwriters, and you shall have received from such counsel a signed opinion, dated as of the First Closing Date, together with copies thereof for each of the other Underwriters, with respect to the validity of the issuance of the Shares, the form of the Registration Statement and Prospectus (other than the financial statements and other financial data contained therein), the execution of this Agreement and other related matters as you may reasonably require. The Company, and the Subsidiary shall have furnished to such counsel for the several Underwriters such documents as they may reasonably request for the purpose of enabling them to render such opinion.
(d) You shall have received a letter prior to the effective date of the Registration Statement and again on and as of the First Closing Date from Ernst & Young Audit Sp. z o. o., Warsaw, Poland, independent public accountants for the Company, substantially in the form approved by you, and including estimates of the Company's revenues and results of operations for the period ending at the end of the month immediately preceding the effective date and results of the comparable period during the prior fiscal year.
(e) At the Closing Dates, (i) the representations and warranties of the Company contained in this Agreement shall be true and correct with the same effect as if made on and as of the Closing Dates and the Company and the Subsidiary shall have performed all of their respective obligations hereunder and satisfied all the conditions on their part to be satisfied at or prior to such Closing Date; (ii) the Registration Statement and the Prospectus and any amendments or supplements thereto shall contain all statements which are required to be stated therein in accordance with the Act and the Rules and Regulations, and shall in all material respects conform to the requirements thereof, and neither the Registration Statement nor the Prospectus nor any amendment thereof or supplement thereto, or thereto shall contain any Issuer Free Writing Prospectus, contains an untrue statement of a material fact which, in the Underwriters’ reasonable opinion, is material, or omits omit to state a any material fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and ; (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion there shall have been provided to the Underwriters with consent from such counsel. VCL Law LLPbeen, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included in the Registration Statement and the Prospectus pursuant to the Regulations which are not so included, and (vii) subsequent to since the respective dates as of which information is given in the Registration Statement and the Prospectusgiven, there has not been any Material Adverse Change no material adverse change, or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares or long-term debt of the Company or any change or development involving a material adverse change, whether or not arising from transactions in the ordinary course of business, in the business, properties, condition (financial or otherwise), results of operations, shareholders’ equitycapital stock, properties long-term or prospects short-term debt or general affairs of the Company or the Subsidiary from that set forth in the Registration Statement and the Prospectus, except changes which the Registration Statement and Prospectus indicate might occur after the effective date of the Registration Statement, and the Company and each of the Subsidiary shall not have incurred any material liabilities or entered into any agreement not in the ordinary course of business other than as referred to in the Registration Statement and Prospectus; (iv) except as set forth in the Prospectus, no action, suit or proceeding at law or in equity shall be pending or, to the knowledge of the Company, taken as a wholethreatened against the Company or the Subsidiary which would be required to be set forth in the Registration Statement, including but not limited and no proceedings shall be pending or, to the occurrence knowledge of the Company, threatened against the Company or the Subsidiary before or by any firecommission, floodboard or administrative agency in the United States, stormPoland or elsewhere, explosionwherein an unfavorable decision, accidentruling or finding would be reasonably likely to materially and adversely affect the business, act property, condition (financial or otherwise), results of war operations or terrorism general affairs of the Company or other calamitythe Subsidiary, and (v) the Representatives shall have received, at the First Closing Date, a certificate signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of the First Closing Date, evidencing compliance with the provisions of this subsection (e).
(f) Upon exercise of the Over-allotment Option, the effect of which, in any such case described above, is, in the reasonable judgment obligations of the Underwritersseveral Underwriters (or, so material at their option, the Representatives individually) to purchase and adverse pay for the Option Shares referred to therein will be subject (as of the date hereof and as of the Option Closing Date) to make it impracticable or inadvisable to proceed with the sale of Securities or Offering as contemplated hereby.following additional conditions:
(i) The Underwriters the Registration Statement shall remain effective at the Option Closing Date, and no stop order suspending the effectiveness thereof shall have received a lock-up agreement from each Lock-Up Partybeen issued and no proceedings for that purpose shall have been instituted or shall be pending, duly executed or, to your knowledge or the knowledge of the Company, shall be contemplated by the applicable Lock-Up PartyCommission, and any reasonable request on the part of the Commission for additional information shall have been complied with to the satisfaction of Xxxxx & XxXxxxxx, counsel to the several Underwriters;
(ii) at the Option Closing Date, there shall have been delivered to the Representatives the signed opinion of Xxxxx & Xxxxxxx LLP, Washington, D.C., and Warsaw, Poland, counsel for the Company, dated as of the Option Closing Date, in form and substance satisfactory to Xxxxx & XxXxxxxx, counsel to the several Underwriters, together with copies of such opinions for each case of the other several Underwriters, which opinion shall be substantially the same in scope and substance as the opinion furnished to the Representatives at the First Closing Date pursuant to Section 5(b) hereof, except that such opinion, where appropriate, shall cover the Option Shares;
(iii) at the Option Closing Date, there shall have been delivered to the Representatives a letter in form attached and substance satisfactory to the Representatives from Ernst & Young Audit Sp. z o. o., Warsaw, Poland, dated the Option Closing Date and addressed to the Underwriters confirming the information in their letter referred to in Section 5(d) hereof and stating that nothing has come to their attention during the period from the ending date of their review referred to in said letter to a date not more than five business days prior to the Option Closing Date, which would require any change in said letter if it were required to be dated the Option Closing Date;
(iv) at the Option Closing Date, there shall have been delivered to the Representatives a certificate of the Chief Executive Officer and Chief Financial Officer of the Company, dated the Option Closing Date, in form and substance satisfactory to Xxxxx & XxXxxxxx, counsel to the several Underwriters, substantially the same in scope and substance as Annex IVthe certificate, furnished to you at the First Closing Date pursuant to Section 5(e) hereof;
(v) all proceedings taken at or prior to the Option Closing Date in connection with the sale and issuance of the Option Shares shall be satisfactory in form and substance to the Representatives, and the Representatives and Xxxxx & XxXxxxxx, counsel to the several Underwriters, shall have been furnished with all such documents, certificates and opinions as the Representatives may request in connection with this transaction in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company and the Subsidiary or their compliance with any of the covenants or conditions contained herein.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(lg) No action shall have been taken and no statuteby the Commission or the NASD, rulethe effect of which would make it improper, regulation or order shall have been enacted, adopted or issued by at any federal, state or foreign governmental or regulatory authority that would, as of time prior to the Closing Date, prevent the issuance or sale for members of the Securities; NASD to execute transactions (as principal or agent) in the Shares, and no injunction or order proceedings for the taking of any federal, state or foreign court such action shall have been issued instituted or shall be pending, or, to the knowledge of the Representatives or the Company, shall be contemplated by the Commission or the NASD. The Company and the Representatives represent that wouldat the date hereof they have no knowledge that any such action is in fact contemplated by the Commission or the NASD. The Company and the Subsidiary shall have advised the Representatives of any NASD affiliation of any of their officers, directors, stockholders or other affiliates.
(h) If any of the conditions herein provided for in this Section shall not have been fulfilled as of the Closing Datedate indicated, prevent the issuance or sale this Agreement and all obligations of the Securities several Underwriters under this Agreement may be canceled at, or materially and adversely affect or potentially materially and adversely affect at any time prior to, each Closing Date by the business or operations Representatives. Any such cancellation shall be without liability of the Underwriters to the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 1 contract
Samples: Underwriting Agreement (Central European Distribution Corp)
Conditions of Underwriters’ Obligations. The obligations obligation of the Underwriters each Underwriter to purchase and pay for the Securities Firm Shares that it has agreed to purchase hereunder on the Closing Date, and to purchase and pay for any Optional Shares as provided herein shall be to which it exercises its right to purchase under Section 5 on an Option Closing Date, is subject to: (i) at the date hereof, the Closing Date and any Option Closing Date to the continuing accuracy and fulfillment of the representations and warranties of CWCO and the Company herein containedSelling Shareholder, as of the date hereof and as of the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by CWCO and the Company Selling Shareholder of its their respective covenants and obligations hereunder, and (iv) each of to the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing If required by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the ActRegulations, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission SEC pursuant to Rule 424(b) of the Regulations within the applicable time period; and, at period prescribed for such filing by the Regulations. On or prior to the Closing Date and or any Option Closing Date, as the actual time of the Closingcase may be, no stop order or other order preventing or suspending the effectiveness of the Registration Statement (including any document incorporated by reference therein) or the sale of any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus Shares shall have been issued; issued under the Act or any state or foreign securities law, and no proceedings for the issuance of such an order that purpose shall have been initiated or threatened; all requests shall be pending or, to the Representatives' knowledge or the knowledge of CWCO, shall be contemplated by the SEC or by any authority in any jurisdiction designated by the Representatives pursuant to Section 6(f) hereof. Any request on the part of the Commission SEC or any state or foreign securities authority for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of counsel for the Underwriters’ satisfaction.
(b) The Underwriters shall not have reasonably determinedAll corporate proceedings and other matters incident to the authorization, form and advised validity of this Agreement, the Company, that Shares and the form of the Registration Statement, the General Disclosure Package or Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all material respects to counsel for the Underwriters. CWCO shall have furnished to such counsel all documents and information that they may have reasonably requested to enable them to pass upon such matters. The Representatives shall have received from the Underwriters' counsel, Ballard Spahr Andrews & Ingersoll, LLP an opinion, dated as of the Closixx Xxxx xxx xxx Xxxxxn Cxxxxxx Xxte, as the case may be, and addressed to the Representatives individually and as representatives of the several Underwriters, which opinion shall be satisfactory in all respects to the Representatives.
(c) The Representatives shall have received a copy of an executed Lock-up Agreement from CWCO, the Selling Shareholder and each of the persons listed on Schedule III hereto.
(d) On the Closing Date and any Option Closing Date, there shall have been delivered to the Representatives signed opinions of Edwards & Angell, LLP, United States. securities law counsel to CWCO, Chxxxxx Xdamx, Xxxchie and Duckworth, Cayman Islands counsel to CWCO, Baxxxx & Xxxxxxms, Xxxxxe couxxxx xx XWCO, Conyers Dill & Pearman, Britixx Xxxgin Xxxxxxx counsel to CWCO, Mackay & Xxxxx, Xxxxmas xxxxxxl to CWCO and Peter Evelyn & Co., Barbados counsel to CWCO and Akin, Gump, Strauss, Haxxx & Xxxx, L.L.P., counsel for the Selling Shareholder, dated as of exxx xuch xxxe and addressed to the Representatives individually and as representatives of the several Underwriters to the effect set forth in Exhibit A and Exhibit B hereto or to such effect as is otherwise reasonably satisfactory to the Representatives.
(e) At the Closing Date and any Option Closing Date: (i) the Registration Statement and any post-effective amendment thereof thereto and the Prospectus and any amendments or supplement theretosupplements thereto shall contain all statements that are required to be stated therein in accordance with the Act and the Regulations and in all material respects shall conform to the requirements of the Act and the Regulations, and neither the Registration Statement nor any post-effective amendment thereto nor the Prospectus and any amendments or supplements thereto shall contain any Issuer Free Writing Prospectus, contains an untrue statement of a material fact which, in the Underwriters’ reasonable opinion, is material, or omits omit to state a any material fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, ; (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for since the Company, dated respective dates as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the Underwriters, shall have furnished to the Representative its (i) written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and which information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Offices, PRC counsel to the Underwriters, shall have furnished to the Representative its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative.
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businesses, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included is given in the Registration Statement and any post-effective amendment thereto and the Prospectus pursuant to and any amendments or supplements thereto, except as otherwise stated therein, there shall have been no material adverse change in the Regulations which are Business Conditions of the CWCO Group from that set forth therein, whether or not so included, and arising in the ordinary course of business; (vii(iii) subsequent to the respective dates as of which information is given in the Registration Statement and the ProspectusProspectus or any amendment or supplement thereto, there has not shall have been any Material Adverse Change no event or transaction, contract or agreement entered into by CWCO, Belize Water or any development involving a prospective Material Adverse Change, whether or not arising from transactions of the Acquired Companies other than in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto business and as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained set forth in the Registration Statement and Prospectus (the “CFO Certificate”)or Prospectus, providing “management comfort” with respect that has not been, but would be required to such informationbe, in form and substance reasonably satisfactory to the Representative, substantially set forth in the form attached hereto as Xxxxx XXX.
Registration Statement or Prospectus; (hiv) Subsequent to since the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the respective dates as of which information is given in the Registration Statement (exclusive of and any post-effective amendment thereof) thereto and the Prospectus (exclusive of and any supplement amendments or supplements thereto), there shall not have been no material adverse change, loss, reduction, termination or non-renewal of any contract to which CWCO, Belize Water or any of the Acquired Companies is a party, that has not been, but would be required to be set forth in the Registration Statement or Prospectus; and (v) no action, suit or proceeding at law or in equity shall be pending or threatened against CWCO, Belize Water or any of the Acquired Companies that would be required to be set forth in the Prospectus, other than as set forth therein, and no proceedings shall be pending or threatened against or directly affecting CWCO, Belize Water or any of the Acquired Companies before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding would materially adversely affect the Business Conditions of CWCO, Belize Water or any of the Acquired Companies.
(f) The Representatives shall have received at the Closing Date and any Option Closing Date certificates of the Chief Executive Officer and the Chief Financial Officer of CWCO dated as of the date of the Closing Date or Option Closing Date, as the case may be, and addressed to the Representatives, individually and as representatives of the several Underwriters, to the effect that (i) the representations and warranties of CWCO in this Agreement are true and correct, as if made at and as of the Closing Date or the Option Closing Date, as the case may be, and that CWCO has complied with all the agreements, fulfilled all the covenants and satisfied all the conditions on its part to be performed, fulfilled or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, and (ii) the signers of the certificate have carefully examined the Registration Statement and the Prospectus and any amendments or supplements thereto, and the conditions set forth in Section 9 hereof have been satisfied.
(g) The Representatives shall have received at the Closing Date a certificate of the Selling Shareholder dated as of the Closing Date and addressed to the Representatives, individually and as representatives of the several Underwriters, to the effect that the representations and warranties of the Selling Shareholder in this Agreement are true and correct, as if made at and as of the Closing Date and that the Selling Shareholder has complied with all the agreements, fulfilled all the covenants and satisfied all the conditions on its part to be performed, fulfilled or satisfied at or prior to the Closing Date.
(h) At the time this Agreement is executed and at the Closing Date and any Option Closing Date the Representatives shall have received a letter, dated the date of delivery thereof, addressed to the Representatives, individually and as representatives of the several Underwriters, in form and substance satisfactory to the Representatives in all respects (including, without limitation, the non-material nature of the changes or decreases, if any, referred to in clause (iii) below) from KPMG:
(i) confirming they are independent certified public accountants within the meaning of the Act and the Regulations;
(ii) stating that, in their opinion, the consolidated financial statements, schedules and notes of CWCO included in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the Act and the Regulations;
(iii) stating that, on the basis of specified procedures, which included a reading of the latest available unaudited interim consolidated financial statements of CWCO (with an indication of the date of the latest available unaudited interim financial statements), a reading of the minutes of the meetings of the shareholders and the Boards of Directors of CWCO and Belize Water and the Audit and Executive and Compensation Committees of such Boards and inquiries to certain officers and other employees of CWCO responsible for operational, financial and accounting matters and other specified procedures and inquiries, nothing has come to their attention that would cause them to believe that at a specified date not more than five business days prior to the date of such letter, there was any: (A) change in the capital stock other than (1) the issuance of Ordinary Shares or upon the exercise of currently outstanding options and warrants as described in the Prospectus, (2) the grant of options to purchase Ordinary Shares under CWCO's currently outstanding stock options plans and the issuance of Ordinary Shares upon the exercise thereof, and (3) the issuance of redeemable preferred stock under CWCO's Employee Share Incentive Plan, (B) increase in long-term debt of CWCO, which is currently $18,985,000 or (C) any decrease in consolidated net current assets or shareholders equity of CWCO as compared with the Company or any change or development involving a change, whether or not arising from transactions amounts shown in the ordinary course December 31, 2002 audited balance sheets of businessCWCO included in the Registration Statement or that for the periods from December 31, 2002 to the date of the latest available unaudited financial statements of CWCO, if any, and to a specified date not more than five days prior to the date of the letter, there were any decreases, as compared to the corresponding periods in the prior year, in operating income or total or per share amounts of net income, except in all instances for changes, decreases or increases that the businessRegistration Statement discloses have occurred or may occur and except for such other changes, condition decreases or increases which the Underwriters shall in their sole discretion accept.
(financial iv) stating that they have compared specific dollar amounts (or otherwisepercentages derived from such dollar amounts), numbers of shares and other numerical data and financial information set forth in the Registration Statement that have been reasonably specified by the Representatives prior to the date of this Agreement (in each case to the extent that such dollar amounts, percentages and other information is derived from the general accounting records subject to the internal controls of CWCO's accounting systems, or has been derived directly from such accounting records by analysis or comparison or has been derived from other records and analyses maintained or prepared by CWCO) with the results obtained from the application of operationsreadings, shareholders’ equityinquiries and other appropriate procedures set forth in the letter, properties or prospects and found them to be in agreement.
(v) stating that, on the basis of specified procedures, which included (A) a reading of the Companyunaudited pro forma condensed consolidated balance sheet as of December 31, taken 2002 and the unaudited pro forma condensed consolidated statement of income for the year ended December 31, 2002, included in the Registration Statement; (B) inquiry of management of each of the Acquired Companies who have responsibility for financial and accounting matters; (C) proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the unaudited pro forma condensed consolidated financial statements, that nothing came to their attention as a wholeresult of the above procedures, including but however, that caused them to believe that the unaudited pro forma condensed consolidated financial statements included in the Registration Statement do not limited comply as to form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X and that the pro forma adjustments have not been properly applied to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamity, the effect of which, in any such case described above, is, historical amounts in the reasonable judgment compilation of those statements. All financial statements and schedules included in material incorporated by reference into the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with Prospectus shall be deemed included in the sale Registration Statement for purposes of Securities or Offering as contemplated herebythis subsection.
(i) The Underwriters All corporate and other proceedings and other matters incident to the authorization, form and validity of this Agreement and the form of the Registration Statement and Prospectus and all other legal matters related to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all respects to counsel to the Underwriters. CWCO shall have received a lock-up agreement from each Lock-Up Party, duly executed by the applicable Lock-Up Party, in each case substantially in the form attached as Annex IVfurnished to such counsel all documents and information that they shall have reasonably requested to enable them to pass upon such matters.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized have been included for trading quotation on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global National Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA There shall have been duly tendered to the Representatives for the respective accounts of the Underwriters, certificates representing all of the Shares to be purchased by the Underwriters on the Closing Date or Option Closing date, as the case may be.
(l) The NASD has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(lm) No action At the Closing Date and any Option Closing Date, the Representatives shall have been taken furnished such additional documents, information and no statute, rule, regulation or order certificates as they shall have been enactedreasonably requested. All such opinions, adopted certificates, letters and documents shall be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Representatives and the Underwriters' counsel. CWCO and the Selling Shareholder shall furnish the Representatives with such conformed copies of such opinions, certificates, letters and other documents as they shall reasonably request. If any condition to the Underwriters' obligations hereunder to be fulfilled prior to or issued by at the Closing Date or any federal, state or foreign governmental or regulatory authority that would, as of the Option Closing Date, prevent as the issuance or sale case may be, is not fulfilled, the Representatives may on behalf of the Securities; and no injunction or order of any federalseveral Underwriters, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(m) The Company shall have furnished the Underwriters and Underwriters’ Counsel with such other certificates, opinions or documents as they may have reasonably requested.
(n) The CSRC shall have concluded the CSRC Filings and published the filing results on January 2, 2024 in respect of the CSRC Filings on its website, and such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.
(o) The Company is not required to apply for cybersecurity review with the CAC terminate this Agreement with respect to the Company’s proposed overseas listing pursuant Closing Date or such Option Closing Date, as applicable, or, if they so elect, waive any such conditions which have not been fulfilled or extend the time for their fulfillment. Any such termination shall be without liability of the Underwriters to CWCO or the Revised Cybersecurity Review MeasuresSelling Shareholder.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder, as to purchase and pay for the Securities as provided herein Shares to be delivered at each Time of Delivery, shall be subject to: subject, to the condition (iwhich condition may be waived by the Underwriters) the accuracy of the that all representations and warranties and other statements of the Company herein containedare, as of the date hereof at and as of such Time of Delivery, true and correct, the Closing Date or condition that the Additional Closing Date, (ii) statements of the absence from Company and its officers made in any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel certificate delivered pursuant to this Section 7 Agreement shall be, at and as of any misstatement or omissionsuch Time of Delivery, (iii) true and correct, the performance by condition that the Company shall have performed all of its obligations hereunderhereunder theretofore to be performed, and (iv) each of the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time periodperiod prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or Statement, any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure PackagePreliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings proceeding for the issuance of such an order that purpose shall have been initiated or threatenedthreatened by the Commission; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act; and all requests for additional information on the part of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the UnderwritersRepresentatives’ reasonable satisfaction.;
(b) The Underwriters shall not have reasonably determined, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and LLP (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLPUS), counsel to the Underwriters, shall have furnished to the Representative its (i) written opinionUnderwriters such opinion or opinions, addressed dated such Time of Delivery, with respect to this Agreement, the Registration Statement, the Pricing Disclosure Package, the Prospectus and other related matters as the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Officesrequest;
(c) Fenwick & West LLP, PRC counsel to the UnderwritersCompany, shall have furnished to the Representative its Underwriters their written opinionopinion and letter, addressed to the Underwriters and each dated the Closing Date or any Additional Closing Date, as the case may besuch Time of Delivery, in form and substance reasonably satisfactory to the Representative.Underwriters;
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of On the date hereof and as also at each Time of Delivery, PricewaterhouseCoopers LLP, shall have furnished to the Underwriters a letter or letters, each dated the respective date of delivery thereof, in form and substance reasonably satisfactory to the Underwriters;
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the Closing Date, latest audited financial statements included or incorporated by reference in the representations and warranties of the Company set forth in Section 2 hereof are accurate, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained Pricing Prospectus any material loss or interference with its businessesbusiness from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated decree, otherwise than as set forth or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included contemplated in the Registration Statement and the Prospectus pursuant to the Regulations which are not so includedPricing Prospectus, and (viiii) subsequent to since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares capital stock (other than the issuance of shares of Common Stock upon exercise of stock options or warrants, the issuance of stock options or restricted stock units under the Company’s existing equity incentive plans or the conversion of notes, pursuant to contractual obligations described in the Registration Statement and the Pricing Prospectus) or long-term debt of the Company or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fireMaterial Adverse Effect, flood, storm, explosion, accident, act of war otherwise than as set forth or terrorism or other calamitycontemplated in the Pricing Prospectus, the effect of which, in any such case described abovein clause (i) or (ii), is, is in the reasonable sole judgment of the Underwriters, Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the sale public offering or the delivery of Securities the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(f) On or Offering after the date hereof there shall not have occurred any of the following: (i) additional material governmental restrictions, not in force and effect on the date hereof, shall have been imposed upon trading in securities generally or minimum or maximum prices shall have been generally established on the New York Stock Exchange, The NASDAQ Global Market, the NYSE Amex or in the over-the-counter market by FINRA, or trading in securities generally shall have been suspended on the New York Stock Exchange, The NASDAQ Global Market, the NYSE Amex or in the over the counter market by FINRA, or a general banking moratorium shall have been established by federal or New York authorities, (ii) a suspension or material limitation in trading in securities generally on The NASDAQ Global Market, (iii) a suspension or material limitation in trading in the Company’s securities on The NASDAQ Global Market, (iv) an outbreak of major hostilities or other national or international calamity or any substantial change in political, financial or economic conditions shall have occurred or shall have accelerated or escalated to such an extent, as, in the sole judgment of the Representative, to affect materially and adversely the marketability of the Shares or (v) there shall be any action, suit or proceeding pending or threatened, or there shall have been any development or prospective development involving particularly the business or properties or securities of the Company or any of its subsidiaries or the transactions contemplated by this Agreement, which, in the sole judgment of the Representative, has materially and adversely affected the Company’s business or earnings and makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(g) The Shares to be sold at such Time of Delivery shall have been duly listed, subject to notice of issuance, on The NASDAQ Global Market;
(h) Each director and executive officer of the Company, in their capacities as contemplated hereby.such, shall have executed and delivered to the Underwriters a lock-up agreement in form and substance reasonably satisfactory to the Underwriters;
(i) The Underwriters shall have received on and as of each Time of Delivery, as the case may be, satisfactory evidence of the good standing of the Company in its jurisdiction of organization and its good standing as a lock-up agreement from each Lock-Up Party, duly executed by foreign entity in the applicable Lock-Up Partyjurisdictions set forth on Schedule III hereto, in each case substantially in writing or any standard form of telecommunication from the form attached as Annex IV.appropriate governmental authorities of such jurisdictions;
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Global Market and satisfactory evidence of such action shall have been provided to the Underwriters. The Company shall have taken no action designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq Global Market, nor will the Company have received any information suggesting that the Commission or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) 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 each Time of Delivery, as the Closing Datecase may be, prevent the issuance or sale of the SecuritiesShares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of each Time of Delivery, as the Closing Datecase may be, prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations Shares;
(k) None of the Company.Underwriters shall have discovered and disclosed to the Company on or prior to the Time of Delivery that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the reasonable opinion of counsel for the Underwriters, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Pricing Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the reasonable opinion of such counsel, is material or omits to state any fact which, in the reasonable opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading;
(l) All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Shares, the Registration Statement, the Pricing Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters;
(m) The Company shall have furnished to the Underwriters Representatives a certificate, dated each Time of Delivery, of its President and Underwriters’ Counsel its Chief Financial Officer stating in their respective capacities as officers of the Company on behalf of the Company that (i) no stop order suspending the effectiveness of the Registration Statement (including, for avoidance of doubt, any Rule 462(b) Registration Statement), or any post-effective amendment thereto, shall be in effect and no proceedings for such purpose shall have been instituted or, to their knowledge, threatened by the Commission, (ii) for the period from and including the date of this Agreement through and including such Time of Delivery, there has not occurred any Material Adverse Effect, (iii) as of such Time of Delivery, the representations and warranties of the Company in this Agreement are true and correct and the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such other certificatesClosing Date, opinions and (iv) to their knowledge, there has not been, subsequent to the date of the most recent audited financial statements included or documents incorporated by reference in the Pricing Disclosure Package, any Material Adverse Effect in the financial position or results of operations of the Company, or any change or development that, singularly or in the aggregate, would reasonably be expected to involve a Material Adverse Effect, except as they may have reasonably requested.set forth or contemplated in the Pricing Disclosure Package and the Prospectus;
(n) The CSRC Company shall have concluded furnished to the CSRC Filings and published the filing results on January 2, 2024 in respect Representatives a Secretary’s Certificate of the CSRC Filings on its websiteCompany, in form and such notice substance reasonably satisfactory to counsel for the Underwriters and customary for the type of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidated.offering contemplated by this Agreement; and
(o) The Company is not required to apply for cybersecurity review with the CAC with respect shall have furnished to the Company’s proposed overseas listing pursuant to Representatives a certificate, dated such Closing Date, of its Chief Financial Officer, substantially in the Revised Cybersecurity Review Measuresform of Exhibit B hereto.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters Underwriter hereunder, as to purchase and pay for the Securities as provided herein Notes to be delivered at the Time of Delivery, shall be subject to: (i) subject, in its discretion, to the accuracy of the condition that all representations and warranties and other statements of the Company herein containedare, as of the date hereof at and as of such Time of Delivery, true and correct in all material respects, the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by condition that the Company shall have performed in all material respects all of its obligations hereunderhereunder theretofore to be performed as of such Time of Delivery, and (iv) each of the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act, the Final Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters Supplement shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time periodperiod prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure PackageStatement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings proceeding for the issuance of such an order that purpose shall have been initiated or threatenedthreatened by the Commission; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Securities Act; and all requests for additional information on the part of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ Underwriter’s reasonable satisfaction.;
(b) The Underwriters shall not have reasonably determinedXxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the UnderwritersUnderwriter, shall have furnished to the Representative its (i) written opinionUnderwriter such opinion or opinions, addressed dated such Time of Delivery, with respect to this Agreement, the Underwriters Registration Statement, the Disclosure Package, the Prospectus and dated the Closing Date or any Additional Closing Date, other related matters as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel Underwriter may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Officesrequest;
(c) Xxxxxx Xxxxxx LLP, PRC counsel to the UnderwritersCompany, shall have furnished to the Representative Underwriter its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may besuch Time of Delivery, in form and substance reasonably satisfactory to the Representative.Underwriter as provided in Exhibit A;
(d) The Underwriters On the date hereof and also at the Time of Delivery, Xxxxxx, Xxxxxxxx & Company, P.C., shall have received certificates furnished to the Underwriter a letter or letters, dated the respective date of delivery thereof, in form and substance reasonably satisfactory to the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing DateUnderwriter, to the effect that: set forth in Annex I hereto;
(i) Neither the conditions set forth in subsection (a) Company nor any of this Section 7 its Material Subsidiaries shall have been satisfied, (ii) as sustained since the date of the date hereof and as of latest audited financial statements included or incorporated by reference in the Closing DateProspectus any loss from fire, the representations and warranties of the Company set forth in Section 2 hereof are accurateexplosion, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed flood or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businessesother calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated decree, otherwise than as set forth or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included contemplated in the Registration Statement and the Prospectus pursuant Disclosure Package or which would not reasonably be expected to the Regulations which are not so includedcause a Material Adverse Change, and (viiii) subsequent to since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares capital stock (other than issuances of Common Stock pursuant to Company stock option plan described in the Registration Statement and the Prospectus) or long-term debt of the Company or any change Material Adverse Change, other than as set forth or development involving a change, whether or not arising from transactions contemplated in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamityDisclosure Package, the effect of which, in any such case described abovein clause (i) or (ii), is, is in the reasonable sole judgment of the Underwriters, Underwriter so material and adverse as to make it impracticable or inadvisable to proceed with the sale public offering or the delivery of Securities the Notes being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(f) On or Offering as contemplated hereby.
after the date hereof there shall not have occurred any of the following: (i) The Underwriters shall have received a lock-up agreement from each Lock-Up Partyadditional material governmental restrictions, duly executed by the applicable Lock-Up Party, not in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed force and admitted and authorized for trading effect on the Nasdaq Global Market and satisfactory evidence of such action date hereof, shall have been provided to the Underwriters. The Company imposed upon trading in securities generally or minimum or maximum prices shall have taken no action designed to terminate, or likely to have been generally established on the effect of terminatingNew York Stock Exchange, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq NASDAQ Global Market, nor will the Company have received any information suggesting that American Stock Exchange or in the Commission over-the-counter market by the FINRA, or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) No action trading in securities generally shall have been taken and no statutesuspended on the New York Stock Exchange, rulethe NASDAQ Global Market, regulation the American Stock Exchange or order in the over the counter market by the FINRA, or a general banking moratorium shall have been enactedestablished by federal or New York authorities, adopted (ii) a suspension or issued by material limitation in trading in securities generally on the NASDAQ Capital Market, (iii) a suspension or material limitation in trading in the Company’s securities on the NASDAQ Capital Market, (iv) an outbreak of major hostilities or other national or international calamity or any federalsubstantial change in political, state financial or foreign governmental economic conditions shall have occurred or regulatory authority that wouldshall have accelerated or escalated to such an extent, as as, in the sole judgment of the Closing DateUnderwriter, prevent to affect materially and adversely the issuance or sale marketability of the Securities; and no injunction Notes or order of (v) there shall be any federalaction, state suit or foreign court proceeding pending or threatened, or there shall have been issued that would, as any development involving particularly the business or properties or securities of the Closing DateCompany or any of its subsidiaries or the transactions contemplated by this Agreement, prevent which, in the issuance or sale reasonable judgment of the Securities or Underwriter, has materially and adversely affect or potentially materially and adversely affect affected the Company’s business or operations earnings and makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Company.Notes being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(mg) The Company shall have furnished or caused to be furnished to the Underwriters Underwriter at such Time of Delivery certificates of officers of the Company, in their capacities as such, reasonably satisfactory to the Underwriter, as to the accuracy of the representations and Underwriters’ Counsel with warranties of the Company, herein at and as of such Time of Delivery, as to the performance by the Company, of all of its obligations hereunder to be performed at or prior to such Time of Delivery, and as to such other certificatesmatters as the Underwriter may reasonably request, opinions or documents as they may have reasonably requested.
(n) The CSRC and the Company shall have concluded furnished or caused to be furnished certificates as to the CSRC Filings matters set forth in subsections (a), (e) and published the filing results on January 2, 2024 in respect (f) of the CSRC Filings on its websitethis Section, and as to such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidatedother matters as the Underwriter may reasonably request.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 1 contract
Conditions of Underwriters’ Obligations. The obligations of the Underwriters Underwriter hereunder, as to purchase and pay for the Securities as provided herein Notes to be delivered at the Time of Delivery, shall be subject to: (i) subject, in its discretion, to the accuracy of the condition that all representations and warranties and other statements of the Company herein containedare, as of the date hereof at and as of such Time of Delivery, true and correct in all material respects, the Closing Date or the Additional Closing Date, (ii) the absence from any certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriters’ Counsel pursuant to this Section 7 of any misstatement or omission, (iii) the performance by condition that the Company shall have performed in all material respects all of its obligations hereunderhereunder theretofore to be performed as of such Time of Delivery, and (iv) each of the following additional conditions.:
(a) The Registration Statement shall have become effective and all necessary regulatory and listing approvals shall have been received not later than 5:30 P.M., Eastern Time, on To the date of this Agreement, or at such later time and date as shall have been consented to in writing extent required by the Underwriters. If the Company shall have elected to rely upon Rule 430A under the Act424, the Final Prospectus shall have been filed with the Commission in a timely fashion in accordance with the terms thereof and a form of the Prospectus containing information relating to the description of the Securities and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time periodperiod prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; and, at or prior to the Closing Date and the actual time of the Closing, no stop order suspending the effectiveness of the Registration Statement or any part thereof, or any amendment thereof, nor suspending or preventing the use of the General Disclosure PackageStatement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; issued and no proceedings proceeding for the issuance of such an order that purpose shall have been initiated or threatenedthreatened by the Commission; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Securities Act; and all requests for additional information on the part of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ Underwriter’s reasonable satisfaction.;
(b) The Underwriters shall not have reasonably determinedXxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, and advised the Company, that the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(c) The Underwriters shall have received, in form satisfactory to the Underwriters and Underwriters’ counsel of (i) legal opinions from Xxxxxx Xxxxxxxx & Riegels, Cayman Islands counsel to the Company dated as of the Closing Date and addressed to the Underwriters, (ii) legal opinions and negative assurance letter from DLA Piper UK LLP, U.S. legal counsel for the Company, dated as of the Closing Date and addressed to the Underwriters, and (iii) legal opinions from Xxx Xxx Law Offices, PRC legal counsel to the Company, dated as of the Closing Date. Each of the opinion shall provide assurance to parties that the legal aspects of the transaction have been properly examined and deemed compliant with applicable laws, regulations, and contractual requirements A copy of such opinion shall have been provided to the Underwriters with consent from such counsel. VCL Law LLP, counsel to the UnderwritersUnderwriter, shall have furnished to the Representative its (i) written opinionUnderwriter such opinion or opinions, addressed dated such Time of Delivery, with respect to this Agreement, the Underwriters Registration Statement, the Disclosure Package, the Prospectus and dated the Closing Date or any Additional Closing Date, other related matters as the case may be, and (ii) negative assurance letter, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may be, and the Company shall have furnished to such counsel such documents and information as such counsel Underwriter may reasonably request to enable them to pass on such matters. XxxXxxxxx Law Officesrequest;
(c) Xxxxxx Xxxxxx LLP, PRC counsel to the UnderwritersCompany, shall have furnished to the Representative Underwriter its written opinion, addressed to the Underwriters and dated the Closing Date or any Additional Closing Date, as the case may besuch Time of Delivery, in form and substance reasonably satisfactory to the Representative.Underwriter;
(d) The Underwriters shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company (the “Officers’ Certificate”), substantially in the form attached hereto as Annex I and dated as of the Closing Date, to the effect that: (i) the conditions set forth in subsection (a) of this Section 7 have been satisfied, (ii) as of On the date hereof and as also at the Time of Delivery, Xxxxxx, Xxxxxxxx & Company, P.C., shall have furnished to the Underwriter a letter or letters, dated the respective date of delivery thereof, in form and substance reasonably satisfactory to the Underwriter;
(i) Neither the Company nor any of its Material Subsidiaries shall have sustained since the date of the Closing Datelatest audited financial statements included or incorporated by reference in the Prospectus any loss from fire, the representations and warranties of the Company set forth in Section 2 hereof are accurateexplosion, (iii) as of the Closing Date, all agreements, conditions and obligations of the Company to be performed flood or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company has not sustained any material loss or interference with its businessesother calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, (v) no stop order suspending the effectiveness of the Registration Statement or any amendment thereof has been issued and no proceedings therefor have been initiated decree, otherwise than as set forth or threatened by the Commission, (vi) there are no pro forma or as adjusted financial statements that are required to be included contemplated in the Registration Statement and the Prospectus pursuant Disclosure Package or which would not reasonably be expected to the Regulations which are not so includedcause a Material Adverse Change, and (viiii) subsequent to since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising from transactions in the ordinary course of business.
(e) At each of the Closing Date, the Underwriters shall have received a certificate of the Company signed by the Secretary of the Company (the “Secretary’s Certificate”), substantially in the form attached hereto as Annex II and dated the Closing Date, certifying: (i) that each of the Charter and Bylaws is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) On the date of this Agreement and on the Closing Date, the Underwriters shall have received a “comfort” letter from Xxxxxx Asia CPAs LLP (the “Auditor Comfort Letter”) as of each such date, addressed to the Underwriters and in form and substance satisfactory to the Underwriters and Underwriters’ Counsel, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and all applicable Regulations, and stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five (5) days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters relating to the Registration Statement covered by such letter.
(g) On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representative, a certificate on behalf of the Company, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial date contained in the Registration Statement and Prospectus (the “CFO Certificate”), providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative, substantially in the form attached hereto as Xxxxx XXX.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been any change in the Ordinary Shares capital stock (other than issuances of Common Stock pursuant to Company stock option plan described in the Registration Statement and the Prospectus) or long-term debt of the Company or any change Material Adverse Change, other than as set forth or development involving a change, whether or not arising from transactions contemplated in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company, taken as a whole, including but not limited to the occurrence of any fire, flood, storm, explosion, accident, act of war or terrorism or other calamityDisclosure Package, the effect of which, in any such case described abovein clause (i) or (ii), is, is in the reasonable sole judgment of the Underwriters, Underwriter so material and adverse as to make it impracticable or inadvisable to proceed with the sale public offering or the delivery of Securities the Notes being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(f) On or Offering as contemplated hereby.
after the date hereof there shall not have occurred any of the following: (i) The Underwriters shall have received a lock-up agreement from each Lock-Up Partyadditional material governmental restrictions, duly executed by the applicable Lock-Up Party, not in each case substantially in the form attached as Annex IV.
(j) The Shares are registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed force and admitted and authorized for trading effect on the Nasdaq Global Market and satisfactory evidence of such action date hereof, shall have been provided to the Underwriters. The Company imposed upon trading in securities generally or minimum or maximum prices shall have taken no action designed to terminate, or likely to have been generally established on the effect of terminatingNew York Stock Exchange, the registration of the Shares under the Exchange Act or delisting or suspending the Shares from trading on the Nasdaq NASDAQ Global Market, nor will or in the Company have received any information suggesting that over-the-counter market by the Commission FINRA, or the Nasdaq Global Market is contemplating terminating such registration or listing. The Firm Shares shall be DTC eligible.
(k) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) No action trading in securities generally shall have been taken and no statutesuspended on the New York Stock Exchange, rulethe NASDAQ Global Market, regulation or order in the over the counter market by the FINRA, or a general banking moratorium shall have been enactedestablished by federal or New York authorities, adopted (ii) a suspension or issued by material limitation in trading in securities generally on the NASDAQ Capital Market, (iii) a suspension or material limitation in trading in the Company’s securities on the NASDAQ Capital Market, (iv) an outbreak of major hostilities or other national or international calamity or any federalsubstantial change in political, state financial or foreign governmental economic conditions shall have occurred or regulatory authority that wouldshall have accelerated or escalated to such an extent, as as, in the sole judgment of the Closing DateUnderwriter, prevent to affect materially and adversely the issuance or sale marketability of the Securities; and no injunction Notes or order of (v) there shall be any federalaction, state suit or foreign court proceeding pending or threatened, or there shall have been issued that would, as any development involving particularly the business or properties or securities of the Closing DateCompany or any of its subsidiaries or the transactions contemplated by this Agreement, prevent which, in the issuance or sale reasonable judgment of the Securities or Underwriter, has materially and adversely affect or potentially materially and adversely affect affected the Company’s business or operations earnings and makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Company.Notes being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(mg) The Company shall have furnished or caused to be furnished to the Underwriters Underwriter at such Time of Delivery certificates of officers of the Company, in their capacities as such, reasonably satisfactory to the Underwriter, as to the accuracy of the representations and Underwriters’ Counsel with warranties of the Company, herein at and as of such Time of Delivery, as to the performance by the Company, of all of its obligations hereunder to be performed at or prior to such Time of Delivery, and as to such other certificatesmatters as the Underwriter may reasonably request, opinions or documents as they may have reasonably requested.
(n) The CSRC and the Company shall have concluded furnished or caused to be furnished certificates as to the CSRC Filings matters set forth in subsections (a), (e) and published the filing results on January 2, 2024 in respect (f) of the CSRC Filings on its websitethis Section, and as to such notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or invalidatedother matters as the Underwriter may reasonably request.
(o) The Company is not required to apply for cybersecurity review with the CAC with respect to the Company’s proposed overseas listing pursuant to the Revised Cybersecurity Review Measures.
Appears in 1 contract
